Employment Update for Small Businesses
April 2018

Dear Visitor,

This month I give you an explanation of indirect discrimination using a recent case related to religious belief as an example. Also, don’t forget now that we are in April that you need to apply the new National Minimum and Living Wage rates from the start of the month.

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Regards
Peter Etherington
Tel: 01664 668164

www.etherington.co.uk

What is Indirect Discrimination?

Limiting the Duration of Holiday may be Discriminatory

The recent Employment Appeal Tribunal (EAT) case of Gareddu v London Underground Ltd, deals with the question of indirect discrimination.  In this case the alleged discrimination was related to religious belief.

Under the Equality Act, indirect discrimination occurs where an employer applies a “provision, criterion or practice” (PCP) equally to all staff but it puts a certain group of employees at a particular disadvantage.  The group of employees (which could be just one) sharing a protected characteristic (e.g. race, sex, religious belief, etc.)  Indirect discrimination is not found, however, if the employer is able to show that the PCP is a proportionate means of achieving a legitimate aim.  For instance, insisting that employees are able to write English to a high standard could be a proportionate means of achieving a legitimate aim for employees undertaking proof-reading for a publisher, even if that means that those for whom English is not their first language may be put at a disadvantage.

In this particular case, Mr Gareddu was a Sardinian Catholic, and he wished to book five consecutive weeks’ holiday in the summer in order to attend a number of religious festivals during that period.  The employer had a rule that no more than three consecutive weeks could be taken.  The tribunal and the EAT agreed that attendance at religious festivals could be considered a genuine manifestation of religion or religious belief (which would enjoy the protection of the law relating to indirect discrimination), but in this case they found that Mr Gareddu was not genuine in asserting that he needed to take the five week period in order to attend religious festivals.  It became evident that the main driver behind his wish for this time off was to spend time with his family in Sardinia.  Whilst it was accepted that he did attend religious festivals when he was there, it became clear that it wasn’t necessary for him to have the full five week period to do so, based on his history, whereby his attendance at festivals was much more hit and miss.

The tribunal and the EAT found therefore that there was no indirect discrimination, so they did not need to go on to consider whether the PCP was a proportionate means of achieving a legitimate aim.  It is quite possible that, had they done so, they would have found that the employer did have reasonable grounds for exercising such a rule – for instance, in order to maintain continuity of service, to ensure time off in the summer could be shared out between staff more readily, etc.

If you receive a request for time off from an employee which you are minded to reject, it is worth exercising some caution if they tell you that the reason for the time off is related to their religion or religious belief.  In some cases, it may be advisable to exercise discretion to allow time off in contravention of a company rule, if it cannot be reasonably justified in the circumstances.

National Living and Minimum Wage Increases

New rates for the National Living Wage (for those aged 25 and over) and the National Minimum Wage came in from 1st April 2017, as follows:

£7.50 per hour for workers aged 25 and over
£7.05 per hour for workers aged 21 to 24
£5.60 per hour for workers aged 18 to 20
£4.05 per hour for workers aged 16 and 17
£3.50 per hour for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.