Issuing Contracts of Employment

The New Year marks an opportunity to make resolutions for how to be better employers, but as January 1^st becomes a distant memory, and the majority of resolutions have fallen by the wayside, a recent case reminds employers of the importance of issuing contracts of employment to new staff, and provides helpful guidance as to when this process should be completed.

Most employers are familiar with their obligations in relation to issuing a “written statement of particulars of employment” containing specific details, including the start date, the rate of pay, the place of work, and the notice arrangements, when a new employee starts employment (usually in the form of a contract of employment).

More experienced HR practitioners may also be aware that the law provides that such a statement must be issued no later than two months after the start of employment, but is not required for employees with less than one months’ continuous service, and that failure to provide a statement can attract compensation if pursued with other employment tribunal claims, of between two to four weeks’ pay.

A recent case involving employees with very short service has muddied the waters on this a little, as the Employment Appeal Tribunal (EAT) has confirmed that an employee with six weeks’ continuous service should have been issued with a written statement of employment particulars, and was therefore entitled to compensation where her employer failed to do so.

The EAT suggested that whilst the law confirms that an employer has up to two months to issue a written statement of employment particulars (and is not required to do so for the first one month of employment), an employee can still seek compensation for not having a written statement of employment particulars if they are employed for between one and two months. Confused? So were we!

The upshot is that employers should now ensure that all employees who have over one months’ continuous service are issued with a written statement of employment particulars – in other words, a contract of employment. That also reflects good practice, to ensure that at least the key terms are set out in writing, to avoid any confusion or dispute.

In any case, from 6 April 2020 and the launch of the Government’s “Good Work Plan”, all employees and, for the first time, workers, will be entitled to a detailed written statement of terms from the very first day they commence work.

So, the moral of the story here is to make sure you have detailed contracts of employment, and that those are issued to employees (for now) in a timely manner (and, from next year, from their first day of employment).

If you need any assistance in relation to preparing contracts of employment, or would like us to review your existing contracts, please do contact a member of the Employment Team via 01603 281139 or email hidden; JavaScript is required.

Reminder: Rest Breaks

Tribunal confirms that workers must receive an uninterrupted break of no less than 20 minutes where they work for six hours or longer.

As we are sure you are aware, the law states that most workers who work for over six hours are entitled to a 20 minute uninterrupted rest break. It is not acceptable, for example, to give two 10 minute breaks totalling 20 minutes.

In certain industries (such as rail and security) those breaks are interrupted. A security guard who ignores a robber attempting to crack the bank’s safe is unlikely to absolve him or herself by saying “Sorry boss, I was on my break!” In these circumstances, where an employee has been prevented from taking their full 20 minutes, an employer must give the employee another rest break, known as ‘compensatory rest’.

Recently the Employment Appeal Tribunal (EAT) was called upon to examine what exactly was meant by compensatory rest. Mr Crawley worked in single-manned signal boxes for Network Rail. Whilst signal box operatives are not constantly busy, they are required to continuously monitor and may be required to take steps to ensure the train network operates smoothly and safely. Whilst Mr Crawley was able to take numerous breaks throughout the day (which cumulatively amounted to over 20 minutes), there was no individual 20 minute long break. Mr Crawley said he had not had his 20 minute rest break, and sued Network Rail.

The EAT agreed with Mr Crawley and held that his rest must be an uninterrupted period of 20 minutes. A combination of shorter breaks is not allowed.

What does this mean?

This case is a reminder that employees must have a full uninterrupted 20 minute break. In the event that an employee’s 20 minute break is interrupted, technically they must be given another full 20 minute break. Where an employee is not allowed to take this break, they may in theory bring a claim.

Where a complaint is upheld, the Employment Tribunal will make a declaration that the working time regulations have been breached, and may award damages where the worker has suffered a loss. A public declaration that an employer has breached the Working Time Regulations will undoubtedly cause reputational damage, and may put off customers and potential candidates alike.

Where a lack of breaks makes working practices unsafe, local councils or the Health and Safety Executive can issue enforcement notices, or even bring criminal charges against the worst offenders.

What should I do?

Don’t panic; the likelihood of an employee bringing a claim because of one 18 minute rest break is fairly low (unless you have particularly litigious employees).

Firstly, review your break policy and record keeping practices to ensure that:

1. all employees are entitled to a full 20 minute break; and
2. where these breaks are interrupted, there is scope for employees to take a full 20 minute break later.

Employees should be allowed to take a break of at least 20 minutes (and remember these breaks can be unpaid). You may also consider ways in which you can record the lengths of breaks employees are taking (e.g. clocking in and out, timesheets and/or time recording).

You should also remember that 20 minutes is an absolute minimum; a modern employer should allow further breaks where the health and safety of their employees requires it. This may be the case for employees working particularly long shifts.

What are the benefits?

Having adequate breaks helps employees to be productive, safe and happy at work. It also lowers the risk of a claim being made against you and the potential of a damaging working time declaration.

If you have any questions about rest breaks or the Working Time Regulations in general please contact a member of our Employmentor team on 01603 281139 or email hidden; JavaScript is required.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

Are your employment contracts GDPR ready?

Even before Uber made the headlines (for all the wrong reasons) by covering up a massive data breach, the imminent introduction of the General Data Protection Regulation (GDPR) has made data protection a hot topic.

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Sexual Harassment: Flirting with Disaster

Following the series of allegations made against public figures over recent weeks, including actor Kevin Spacey and producer Harvey Weinstein, the topic of sexual harassment is a major national talking point. Whilst the media have focussed on allegations made against public figures, these issues can and do affect the workplace. It is also possible that staff, empowered by recent events and the #metoo social media campaign will begin to come forward with their own allegations and concerns.

As a modern employer you can, and should, take steps to ensure your workplace is a safe and welcoming environment for all of your staff and that any allegation of harassment is handled appropriately. Whether or not a complaint is well-founded, how the matter is handled (both in relation to the accuser and the accused) is key in workplace relationships and the protection of your business and its reputation.

What is sexual harassment?

Having a clear idea of what is (and what is not) sexual harassment is key to protecting your employees and your business. Unfortunately it is impossible to say in the abstract what will amount to sexual harassment and it would be equally unhelpful to trot out a legal definition, as there are some acts which, whilst legal, would be completely unacceptable in the workplace. In broad terms, sexual harassment involves unwanted conduct of a sexual nature.

This debate usually circles back to the ‘hand-on-the-knee’ which landed the former Defence Secretary Sir Michael Fallon in hot water last week. As a rule of thumb, where conduct is sexual in the workplace this should set off alarm bells and a starting point should be that that conduct is not appropriate. Where the complainant alleges that the ‘hand-on-the-knee’, whilst maybe not sexual, was not wanted, a modern employer may wish to treat such allegation as one of sexual harassment.

It is also worth remembering that sexual harassment does not necessarily require any physical ‘touching’. As we have seen over the past couple of weeks, lewd comments, emails, texts or seemingly innocuous advances can result in allegations of sexual harassment.

And yes, for these purposes the workplace includes after work drinks and the Christmas Party!

How do I deal with allegations of sexual harassment?

Where an allegation has been made against a member of staff (or ex-member of staff), a modern employer should deal with it with sensitivity and discretion. You should consider the personal turmoil which may have led up to the complaint and be prepared to hear the complainant out, regardless of your views on the severity of the alleged conduct or the seniority of the alleged offender.

It will usually be appropriate to investigate any alleged incidents of sexual harassment or abuse. The investigation should, where possible, be dealt with by someone independent to the case, the accuser and the alleged perpetrator in a way which minimises distress to all parties involved. Of course the investigation should be confidential, but employers should also consider more practical matters:

• Should the accused be suspended?
• Should the accuser and accused be prevented from working together in the short term?
• What is the most appropriate venue for the investigation? The scene of the alleged incident will rarely be appropriate!
• Do you need to speak to anyone else about the matter?
• How will you phrase your questions to both parties?

Depending on the investigation findings it may then be appropriate to take disciplinary action. Conversely if there is no perceived case to answer after investigation, it is crucial that this is communicated to the accused and the accuser sensitively, without blame or judgement on either party. You will also need to think about how to manage the relationship between the individuals moving forward, perhaps with mediation.

What about historic allegations?

In some cases, the alleged conduct will have happened many years before any allegation is made. A modern employer should not dismiss an allegation as false or not worthy of investigation purely because it relates to historic conduct; certainly preparatory investigatory steps should be taken at least.

How can I be pro-active?

Let’s face it – there is little you can do about historical allegations of sexual conduct. There is also little you can do if a sexually charged employee is hell-bent on cornering their crush at the end of after work drinks at 3am in the dark corner of the bar. What you can do is take steps now to ensure that employees know:

• Exactly what behaviour is, and is not, acceptable;
•  What action to take if they feel they have been sexually harassed; and
•  That any victims will be supported.

With that in mind:

• Produce, publish and communicate your policy on sexual harassment in the workplace, the standards of conduct expected, what you consider to be the workplace and what action will be taken;
• Re-train your staff (including directors) on sexual harassment and your policy on it; and
• Review your grievance policy to check that it is appropriate to deal with sexual harassment matters.

Not only should all of that set out your stall on the matter and provide a mechanism for dealing with it, it will also offer you protections and legal defences as an employer if your business ever comes in the firing line.

If you would like more information on the content of this article, details of how to deal with allegations and how you can take a proactive approach to preventing sexual harassment, please call our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Mental Health in the Workplace

Mental health and wellbeing is an issue which touches every corner of society. This year, a report by Business in the Community suggested that three in five (60%) employees have experienced a mental health problem due to work, or where work was a contributing factor. This World Mental Health Day, we look at why mental health in the workplace matters (with the help of a lot of statistics!) and what a modern employer can do to help.

What’s the issue?

Poor mental health has a negative effect on both individuals and businesses, so as an employer it is important to keep an eye on the mental wellbeing of your staff. Poor mental health can lead to increased short term absences, high turnover of staff and decreased productivity.

In addition, almost one in three (31%) employees have been formally diagnosed with a mental health issue. Where an employee’s poor mental health amounts to a disability, their employer may have to make adjustments to their employment or physical surroundings (where it would be reasonable to do so).

It is therefore in the best interests of both employers and employees to help ensure employees’ mental wellbeing is safeguarded.

What can employers do?

It is important to have an open dialogue about mental health concerns. Only 53% of employees feel comfortable talking about mental health issues at work, and only 11% of those who have suffered from a mental health issue have disclosed it to their line manager. This is perhaps unsurprising given that 15% of employees who disclosed a mental health issue to a line manager say that they then became subject to disciplinary procedures, dismissal or demotion.

Modern employers should encourage employees to come forward with issues which are causing stress or concerns at an early stage. This will allow managers to assess the scale of the problem, offer support to the employee if appropriate, make changes if appropriate, or offer additional training. Employees should be reassured that they will not be subject to disciplinary procedures as a result of declaring a mental health issue (and, legally, should not be so subject!).

Employees taking intermittent short-term absences from work can be disruptive to an employer’s business. When an employee takes time off due to mental health issues, communication is key. Employers may consider altering the requirement for employees to call in when they are off sick, instead offering email or text as a temporary option if it helps to overcome a boundary faced by an employee with a mental health problem. Equally, setting parameters for updates and communication is crucial – too little is just as bad as too often! Back-to-work meetings can be a helpful tool to assist those who may be struggling with their mental health and open up lines of dialogue.

Where absences are more long-term, employers should attempt to keep lines of dialogue open. Offering support to employees whilst they are on long-term sickness absence may help encourage them back to work and will also help the employer establish whether a disability has developed. This is important, as in some circumstances there is a duty on employers to make reasonable adjustments for disabled employees.

It is also important that managers know how to tackle the issue of mental health absences and the conversations surrounding them. Training is therefore a key part of taking a proactive approach to mental health in the workplace. Whilst 84% of managers agree that the mental wellbeing of employees is their responsibility, only 24% of managers have received any training in mental health.

What are the benefits?

In short: happy, productive staff who aren’t suing you!

Taking a positive, proactive approach to mental health in the workplace can help reduce staff turnover, reduce the amount of work days lost to sick leave and ultimately make your business more productive and profitable. It also has huge reputational benefits and puts you a step further on the road to truly being a “modern employer”.

If you would like more information on the content of this article and how you can take a proactive stance on mental health in the workplace, please call our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Compensation in Discrimination Claims set to Increase

New “bands” for calculating compensation to Claimants for “injury to feelings” in discrimination claims have been published, which come into effect for claims brought on or after today, 11 September 2017.

For claims issued from today, compensation for “injury to feelings” will be at the following rates:

• Lower band: £800 – £8,400
• Middle band: £8,400 – £25,200
• Upper band: £25,200 – £42,000
• Exceptional cases: £42,000 +

What is injury to feelings?

Injury to feelings is compensation awarded in discrimination claims. It is compensation to a Claimant for “injured feelings” – i.e. the hurt, upset, anxiety or distress that they have suffered as a result of discriminatory acts.

A Claimant does not usually need to show medical evidence or a diagnosis of any psychiatric injury arising from the discrimination in order to claim injury to feelings. Where a Tribunal is satisfied that a Claimant has been subject to unlawful discrimination, it then assesses how much upset a Claimant has suffered, looking at all of the circumstances of the case before it, to decide how much compensation should be awarded for injured feelings. The Tribunal does that by categorising treatment into “bands”:

• The lower band. This band is used in less serious cases of discrimination, for example where the act of discrimination is an isolated or one off occurrence.
• The middle band. This band is helpfully described by the Tribunal as being for “serious cases, which do not merit an award in the highest band”.
• The upper band. The Tribunal will find that an award in the upper band is appropriate in the most serious cases, for instance whether there has been a lengthy campaign of discriminatory treatment. Only in the most exceptional cases will an award for injury to feelings exceed the upper band limits.

Once the Tribunal has determined which band the matter falls in to, it then looks to the set compensation levels for that band in order to determine how much compensation the Claimant should receive. So, if the Tribunal determines that the compensation awarded should be in the lower band, the Claimant will receive between £800 – £8,400 compensation for injury to feelings. The Tribunal also has the power to award a Claimant other compensation on top of that, including for any financial loss suffered, and for being unfairly dismissed (if applicable).

Why the change?

Earlier this year, the Court of Appeal made clear that it felt that compensation for injury to feelings had fallen behind inflation and was therefore in need of adjustment. That prompted the increase.

What does this mean?

The increase in the compensation bands is dramatic. Previously, the limits were £600 – £6,000 for the lower band; £6,000 – £18,000 for the middle band; and £18,000 – £30,000 for the upper band. As a result, the potential exposure to employers in discrimination claims has markedly increased.

For discrimination claims brought on or after 11 September 2017, the position is simple; a Claimant can now recover more than they would have done had they issued the claim last week. That said, it is important to take this uplift against the backdrop that awards in the upper and exceptional bands are rare, with the current average award for discrimination claims being just under £14,000. Whilst that average may increase, it is unlikely that many will ever face the upper band awards above.

For ongoing claims, the position is less clear. The Tribunal may exercise its discretion to apply a % increase on the previous bands (likely a 10% increase), though it is unlikely it would apply the new bands absolutely to any existing claims. What happens in practice we will wait to see…

So, the advice to employers does not change: tread carefully, and try not to unlawfully discriminate against employees…whilst it was potentially costly before, it is even more so now! If you are facing any allegations of discrimination, or are dealing with employees who hold a characteristics which might allow them to allege discrimination, please do not hesitate to be in touch with one of the Team for advice.

If you would like more information on the content of this article please contact our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Holiday Pay Updates – Back with a Vengeance

Some of you will no doubt remember the barrage of holiday pay emails and updates we sent to you during 2015 and early 2016. After an 18 month hiatus, there has been another ruling in this arena which (almost) sets the position straight.

For those that do not recall (or have repressed) the holiday pay dramas of 2015, there was a flurry of cases on holiday which, in short, appeared to increase the scope of payments that must be included in holiday pay. At the start of 2016 we were certain that compulsory, non-voluntary overtime should be included in holiday pay calculations, as should a value for lost commission (which, of course, cannot be earned during a period of holiday), although no guidance had been provided on how to carry out those calculations. What we were also clear on was that truly voluntary overtime did not need to be taken into account in calculating holiday pay.

The Employment Appeal Tribunal has ruled this week in the case of Dudley Metropolitan Borough Council v Willetts that voluntary overtime does need to be included in holiday pay calculations where the circumstances mean that pay earned for voluntary overtime essentially forms part of a worker’s normal pay. It also confirmed that, in that case, holiday pay should include an amount in respect of on-call payments, and mileage allowances which were taxable as a benefit in kind, where they formed part of a worker’s normal pay.

Voluntary overtime

The decision means that, in contrast to the previous position where many employers did not consider voluntary overtime in calculating holiday pay, now voluntary overtime must be considered where it is if of a sufficient pattern to form part of “normal pay”. This will come down to the circumstances of each case, but the basic rule of thumb will be that the more regular the voluntary overtime, the more likely it is necessary to include it in holiday pay calculations. It is unlikely that you will need to consider truly one-off voluntary overtime hours worked when calculating holiday pay.

The general position

The basic position now is that holiday pay should include an amount in respect of any normal pay which is normally received by workers. That includes:

• Commission payments
• Overtime of any sort (whether voluntary, compulsory, or guaranteed)
• Shift allowances
• Stand by payments
• Call out payments
• Any travel payments which are treated as taxable remuneration (as opposed to reimbursement of expenses).

The position on whether or not bonuses should be included in holiday calculations remains uncertain. It seems likely that productivity or attendance bonuses will be considered part of normal pay, and therefore payable to workers when on holiday. Annual discretionary bonuses, bonuses based on purely company performance, and other bonuses are a different matter – currently there is no requirement that they should be included in holiday pay calculations, but as yet that has not been ruled on by the courts.

So that’s settled then?

For now, the elements listed above need to be included in holiday pay calculations. However, this decision could be appealed (as seems to be the trend in holiday pay cases), and we will have to wait to see if that is the case.

It also remains to be seen whether the Brexit process will affect the current position, which is derived from and based on European Law. It is therefore, in theory, open to the Government to depart from this decision post-Brexit.

There are also matters that are not settled – namely whether bonuses should be included in holiday pay calculations, and, perhaps more crucially, how holiday pay figures should actually be calculated. It is not clear whether they should be calculated with reference to the normal pay in the 12 weeks prior to taking holiday, 12 months prior, or something else. Some commentators have even suggested that the period for calculation should be on a case by case basis, which would, in our view, be wholly unsatisfactory and unworkable. Some employers are using a 12 week average, but it remains to be seen whether that is correct.

The key point to note is also that this ruling (and the previous rulings on this issue) only apply to the 4 weeks / 20 days holiday prescribed by European Law. The other 1.6 weeks / 8 days required by UK law is not affected by these cases. That means that employers can pay “basic pay” (without commission, overtime, allowances etc.) only, for 8 days of holiday. Needless to say, that makes calculating holiday pay incredibly administratively burdensome.

What do you need to do?

Legally speaking, all workers who take holiday should now, for 20 days of their holiday, receive a payment which includes an element for all the applicable factors listed above. There are various ways suggested by commentators to make those calculations, depending on the particular elements of pay that are to be included, and all of the ways are tricky and labour intensive, and, unfortunately, facts specific. Employers requiring any advice on that should contact the Employmentor Team, and we can help with the various calculation options and which one will be best / most appropriate for a particular scenario.

Practically, it may well be worth considering more generally the arrangements under which your staff are hired and your business is run. Options include:

• Assessing the way in which you pay your staff; in particular your use of overtime, commission, and call-out pay arrangements;
•  Assessing the manner in which staff hours are set and workloads are managed. A move to annualised hours or guaranteed hours might be more palatable and / or certain;
•  Considering costs cutting measures elsewhere in your business if you cannot afford to absorb the increased holiday pay costs.

Planned carefully, changes could be made to the arrangements with your staff which will enable you to be (relatively) certain as to what your wage bill will be each year (as opposed to a more fluctuating one) and to manage staffing levels appropriately. If you would like to speak with any member of the Employmentor Team to chat through your options, please call 01603 281139 to arrange that.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

The Modern Employer

January is nearly over…the New Year’s resolutions are well and truly broken, and we’ve (finally) finished that last bit of Christmas cake. As the nights get longer and the twinkly lights of the festive season become a distant memory, the Employmentor Team is focusing on the upcoming year and is on hand to suggest new resolutions for you to adopt and (hopefully) stick to for (at least) the rest of 2017.

It is well known that, sometimes, employees can be, frankly, a bit of a headache. We’ve all been to seminars about the pitfalls of the employment relationship and how to solve any issues that might arise. That said, employees are often also a business’ greatest asset – after all, they do most of the work and are often the first or main point of contact with clients and customers. With that in mind, our resolution this year, and one which we encourage you to join, is to focus on being a Modern Employer. That means (to us) focusing on how to recruit, retain, and reward employees. It is a focus on treating employees properly, managing them properly, and rewarding them properly, in the hope that those pesky issues, which we are all so well versed in dealing with, do not arise. So, instead of us helping you prevent an employee from joining a competitor when they resign, they will not want to resign in the first place. Instead of us helping you manage issues that arise from an employee who is off on long term sick with stress, you never reach the point where that person feels the need to sign themselves off.

Of course there will still be situations where you need to take firm action to manage employees, and as you know, the team here are always on hand to deal decisively with any problems that arise. However, in an increasingly difficult market, a focus on being a Modern Employer should help to:

• Recruit quality employees;
• Retain quality employees;
• Increase your business’ productivity and efficiency;
• Distinguish your business from your competitors; and
• Make your business more attractive to clients and customers.

After all, many work-seekers and companies judge a business on how it treats its people. Already this year there has been a worldwide call on key figures to act responsibly and to ensure equal treatment. If you can set your business apart as one that treats its employees with respect, it may just mean that you edge the recruitment of an exceptional candidate, or win business from a new client or customer (and should give you less HR headaches to deal with!).

Over the course of the next year the Employmentor Team will be running a number of seminars on ‘The Modern Employer’, and will be focusing its email updates on that theme. Keep your eyes peeled for our first article in the next couple of weeks, and an invite to our first seminar on this topic – we’re excited to see you there!

Call the fashion police, that dress code is discriminatory… or is it?

Can you make your receptionist wear heels? What about a ban on headscarves, turbans, or wearing the cross? Can you stop your staff wearing a badge for their political party of choice? Dress codes have long been a battleground between employers and their staff, and as a number of recent cases show, it can be a difficult line to draw between keeping staff looking smart, and keeping on the right side of the law. You could face a discrimination claim if your policy places employees at a disadvantage because of a protected characteristic such as their sex or religion.

Heels or flats?

As you might have seen in the news, a female receptionist has begun a petition to ask the government to address allegedly sexist dress codes after reportedly being sent home for refusing to comply with a requirement to wear 2 to 4 inch heels at work. Much of the media coverage has labelled this policy sexist and some have raised concerns that this policy may amount to sex discrimination under employment law.

Whilst her petition is receiving a lot of attention, her employer’s dress code policy is not actually unlawful. Simply because men are not also required to wear heels does not make the policy inherently unlawful; consider that there could well be a similar policy that men must wear ties (and women do not), which clearly is not unlawful discrimination. An employer is permitted to have different dress codes for men and for women, provided that the dress code applies an equal overall standard of appearance between the sexes and is not, for instance, because the employer believes that women look more attractive in high heels!

Keeping it neutral

Employers also need to respect their employees’ religions when deciding on a dress code. In the recent case of Achbita and anor v G4S Secure Solutions, which was referred to the European Court of Justice (“the ECJ”), a Muslim woman who worked as a receptionist for a security firm was told by her employer that she would not be allowed to wear a headscarf for religious reasons. Ms Achbita claimed that she was being discriminated against because of her religion.

Initial comments by the ECJ suggest that her employer might be able to defend the claim based on its policy of complete neutrality. Her employer had a policy which prohibited employees from wearing any visible signs of political, philosophical or religious beliefs and from giving expression to any ritual arising from them. The company argued that it was vital to appear completely neutral to its clients. The ECJ suggested that because the policy was so wide and so strictly applied, it was not discriminatory against Ms Achbita on the grounds of her religion.

Ban on headscarves was unacceptable

In the similar case of Bougnaoui and anor v Micropole SA, which has also been referred to the ECJ, a design engineer was asked by her employer not to wear a religious headscarf when at one of its client’s premises. As with the case above, Ms Bougnaoui brought a claim for discrimination based on her religion.

The employer in this case had received complaints from its client that Ms Bougnaoui’s headscarf had made its staff feel uncomfortable, and the employer was keen to maintain a good relationship with this client. This employer also said that it wanted to appear neutral, although its policy was less clear and strict than the one in the case above. Early comments from the ECJ in this case, however, have indicated that the employer’s actions here were discriminatory. The ECJ has indicated in this case that an employer should only be able to restrict an employee from wearing religious items such as a headscarf where it is strictly necessary, such as for health and safety reasons.

So why the difference?

Our view is that the reason for the contradictory views expressed by the ECJ comes down to the clarity of the dress code and the motivation behind its implementation. The policy in the first case (Ms Achbita) focussed on complete neutrality, it was clear, strictly applied and applied to all religions and beliefs indiscriminately. In contrast, in the second case (Ms Bougnaoui) her employer was simply reacting to a discriminatory comment made to it by its client, and was focussed on maintaining the business relationship only. Any policy it did have in place was less wide, had no clear rationale, and not as strictly applied.  That said, the views do now put businesses in a difficult position, as the ECJ has arrived at completely opposite decisions in respect of very similar facts.

What does this mean for you?

We will have to wait and see how the courts resolve the cases above, however, what is clear is that employers will have to tread carefully in terms of discrimination issues if they want to implement a dress code. You need to think carefully about whether the requirements will affect men and women differently or prevent someone from expressing their religion or other characteristic without good reason. If an employee has a good reason for challenging the dress code, it is usually good practice to take this seriously and investigate their concerns.

That said, employers can still be confident in setting a sensible dress code. For example, it is perfectly acceptable in a professional services environment to have a “no shorts or sandals” rule… even in this heat! If you have any concerns, or are thinking about bringing in a dress code, just give the Employmentor Team a call on 01603 281139 and we will be happy to help.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.