Whilst relatively limited details of the case are publically available as yet, Miss Mba alleged that she was pressured to work on Sundays at Brightwell Children’s home in Morden, South-West London (run by the London Borough of Merton), where she provided respite care for children with severe learning difficulties.

According to reports, Miss Mba, who took up the position in 2007 and was subsequently dismissed in 2010, alleged that managers initially agreed to accommodate the requirements of her faith but later pressured her to work on Sundays including threatening her with disciplinary measures. Miss Mba told the Tribunal that she was prepared to work night-time and Saturday shifts, or to have accepted less pay, to be able to observe Sunday as a rest day.

In very brief summary, under the Equality Act 2010 where an employer applies a provision, criterion or practice (i.e. in this case, requiring an employee to work on a religious day) this could amount to indirect discrimination unless the employer can show that the requirement is objectively justified as a proportionate means of achieving a legitimate aim. Interestingly, but under separate statutory legislation (the Employment Rights Act 1996), shop and betting workers have the right, irrespective of religion, to refuse to work on Sunday.

Press Reports on Miss Mba’s case refer to the 2003 case of Copsey v WWB Devon Clays Ltd, where, they state, Mr Copsey, lost a claim of constructive dismissal on religious grounds for being required to regularly work on Sunday. However, Mr Copsey’s claim was not brought under the then Employment Equality (Religion or Belief) Regulations 2003 – the predecessor to the religious or belief related protections in the Equality Act 2010 – as such legislation only came into force after the facts of Mr Copsey’s case had occurred. Instead he brought claims for unfair dismissal, breach of Articles 8 (right to respect for family and private life) and 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights. All three Lord Justices in the High Court put forward different reasoning for their decisions, but for example Lord Justice Mummery found that Article 9 was not engaged because if an employee takes the view that his employers’ work requirements are incompatible with the exercise and manifestations of an individual’s religious beliefs, he is entitled to resign and not work on Sundays.

So what about cases specifically under the anti-discrimination legislation? There are many, too numerous to list in this blog, but by way of example in the case of Williams-Drabble v Pathway Care Solutions Limited (2004), the Tribunal there found that the employer had indirectly discriminated against the claimant, when they introduced a work rota requiring all employees to be available for work on Sunday. Such scheduling conflicted with Ms Williams-Drabble’s usual church service as a practising Christian. She too, like Miss Mba, had previously stated at interview that she was unable to work on Sundays for religious reasons. The Tribunal held that the new rota, which applied equally to all employees, had the effect of putting practising Christians at a disadvantage. Interestingly, Pathway failed to submit an ET3 or give evidence to the Tribunal in order to establish that the new shift system was a proportionate means of achieving a legitimate aim.

Similarly in Estorninho v Zoran Jokic (2006), the Tribunal found that the Claimant had suffered indirect discrimination for refusing to work Sundays. The Claimant chef working in the respondent’s delicatessen was a devout Catholic and his faith required him to abstain from work on Sundays and other holy days. In the Tribunal’s view this put all practising Catholics at a disadvantage as it would prevent them attending worship and abiding by the Catechism. The Tribunal accepted that the treatment could be justified but it was not a proportionate to instruct the Claimant to work to Sundays without discussing this with him and the Claimant’s colleague and trying to find ways of avoiding him having to work on Sundays.

On the other hand there are cases which have found for the employer, a Seventh-Day Adventist’s failed in her argument that being required to work on Saturdays was against her faith (James v MSC Cruises Limited ). In this case the Tribunal found that there was a compelling business need, reflected in both the interests of the business and the other staff, which outweighed the disadvantage to the Claimant.

Sunday observance was also raised in the Employment Tribunal case of Ewieda v British Airways plc (2006) (displaying a cross at work) but Ms Ewieda failed with her claim for indirect discrimination on this point, as the Tribunal found that her request for religious observance precedence over other employees would have given her a form of preferential treatment on the grounds of religion.

We have little detail as yet to the Council’s justification argument used in Miss Mba’s case. However, the indication seems to be that the objective justification was perhaps on the grounds that there were no viable alternatives to requiring Miss Mba to work Sundays and the Council had “a duty to ensure that children with disabilities who need weekend case are supported by carers who are familiar with their specific needs”. We wait, with interest, to see the exact grounds on which this claim was defended. However, one thing is certain, the case is likely to create further furore amongst the Christian community, particularly given its proximity to the recent High Court case which held that another council acted unlawfully by allowing Christian prayers at the start of meetings. The battle between secularism and religious faith continues and seems to have little chance of disappearing anytime soon.

E: susanne.foster@cm-murray.com

Although some rights (including in relation to access to collective facilities and employment vacancies) would have been acquired by agency workers from the first day of any assignment since 1 October, the right to parity of treatment in consideration of many aspects will accrue after 12 weeks in the same role, whether on one or more assignments.

The 12 week period is calculated with reference to calendar weeks, regardless of the number of hours completed during any particular week.  Continuity will be broken in certain circumstances, including where there is a break of 6 weeks or more between assignments, commencement of a new assignment with a new hirer or of a new substantively different role.

However, continuity may also be suspended (i.e. the clock is paused) for several reasons, including any absence of less than 6 calendar weeks, or a break for annual leave, sickness or jury service.  Continuity can even continue to accrue where an agency worker is absent due to pregnancy, childbirth or maternity/paternity leave.

Once the 12 week qualifying period has been met, the agency worker will be entitled to equal treatment including in relation to pay (including overtime and performance-related bonuses), rest breaks and annual leave.

Given concerns that the new rules have been estimated to cost the UK economy up to £1.8 billion per year, it is expected that many employers using agency workers will seek to avoid liability by either seeking to make use of the so-called ‘Swedish Derogation Model’ (as discussed in more detail here) or by simply ensuring that agency workers do not work longer than 12 weeks in any particular role.

24 December 2011 will mark the end of the 12th week since the Regulations took effect.  Although not a particularly festive thought, those agency workers who have been working in the same role for the same hirer since 1 October may therefore find themselves out of work by Christmas Eve.

And on a lighter note…

Vince Cable confirmed an intention to look to simplify the Regulations in his ‘Reforming Employment Relations’ speech on 23 November; no further details were offered save that the paperwork will be reviewed in 18 months’ time.

Why is that? Does it reflect the significantly lower proportion of female than male partners in City firms and particularly in the recently active sectors of funds, capital markets, projects and energy? To some extent probably yes.

But could the general trend also be due to a more cautious attitude on the part of female partners towards the risks inherent in a team move? Certainly female partners in team moves in our experience tend to ask the most questions and appear to be more alive to the potential liability and risks than some of their male peers.

Or perhaps – God forbid – female partners are less ambitious for the big money moves than their male counterparts. Or maybe they just don’t get targeted by head hunters for those big money moves as often as male partners do?

An even more controversial view expressed in some more limited quarters is that possibly some female partners may not inspire the same sort of loyalty in their team as many of their male counterparts: a recent survey of legal PAs in the US suggested that none preferred working with female bosses. It is unclear though whether associates and fellow partners would share the same view.

Another answer may lie in many female partners with children being willing to stick with firms that (more or less) look after them and accommodate their childcare-related flexible working arrangements. This well established longer term loyalty of female partners provides in itself a great business case (if one were needed) for firms to encourage and mentor female lawyers to progress to equity partnership and to support them proactively through and on return from maternity leave, and far beyond.

Mostly likely it’s a combination of some of the above but in some ways, it’s a shame that more women aren’t involved in team moves, as such moves attract profile-enhancing press coverage, can help bridge the pay and promotion gap between female and male partners, and may ultimately inspire and motivate other female lawyers (young and old alike) to be bold enough to reach for the stars.

How we can achieve this is a blog for another day…

Clare Murray is Managing Partner at CM Murray LLP and specialises in employment and partnership law www.cm-murray.com

The Agency Workers Regulations 2010 came into force less than a month ago, on 1 October, after what seemed like an endless period of planning and consultation. Under the new rules, agency workers who have accrued 12 weeks’ service in a particular role are entitled to the same basic working and employment rights (including pay) as normal employees hired directly. Although the Regulations contain extensive anti-avoidance provisions prohibiting businesses from implementing a structure of assignments intended to prevent agency workers from acquiring equal rights, the derogation of which Tesco appears to be taking advantage is clearly legitimate under the new rules.

In order to qualify for this, the Temporary Work Agency (TWA) providing agency workers (in this case, Mainstream, a major supplier of agency truck drivers based in Kent) must enter into an employment contract with their agency workers, containing particular written terms, covering details including minimum hours of work and remuneration. One key requirement is that the agency workers are paid ‘downtime pay’ (of at least 50% of normal pay) by the TWA in between assignments; an obligation which must be complied with for an aggregate period of at least four weeks before the employment contract may be terminated, during which reasonable steps must be taken to seek suitable work for the agency worker.

The issue of ‘downtime pay’ will certainly become a factor for negotiation between the Hirer and TWA – as indeed it is reported to have been between Tesco and Mainstream – meaning that use of this exemption will not necessarily counteract concerns regarding increased costs associated with the new rules. Further, as the derogation provides an exemption only in relation to pay, drivers working for Tesco through contracts with Mainstream will still be entitled to the same rest breaks and annual leave entitlement as Tesco employees after 12 weeks in an assignment, and Tesco will be obliged to provide them with equal access to communal facilities and relevant vacancies from their first day.

Given concerns that the Regulations could cost the UK economy up to £1.8bn per year, it is inevitable that several other employers using temporary workers are also having to take steps to limit their liability under the new rules, and – as pointed out by Tesco – this approach is one that is not only recognised but accepted as lawful by the Government and various UK employment organisations.

However, the Agency Workers Regulations 2010 are not immune to challenge and it will be interesting to see how case law develops in this area.

Last Friday marked the first prosecution under the new Act but was not what many had been expecting: the bribe in question being for a measly £500. And after much talk and analysis of the far reaching jurisdiction of the Act, it turns out that the bribery offence did not take place in some far distant land, it took place in East London, over a parking ticket and somewhat ironically, by a court administrative officer.

Rather than be disappointed at the rather underwhelming nature of this first prosecution, I think that there is genuinely something to be celebrated: a zero tolerance approach to bribery may be here for real. I say ‘may’ because there is of course a huge disparity between prosecuting an individual acting alone, as compared to the prosecution of acts of systemic corruption by or on behalf of organisations.

This morning I listened with interest to Michael Woodford speaking on Radio 4 who was fired by Olympus, the Japanese camera giant, after just two weeks in role as CEO. Whilst the company have cited cultural differences as the reason for dismissal, Mr Woodford strongly rejected this claim. He has alleged that the company’s decision can be attributed to his having raised serious governance concerns in relation to monies paid as part of an acquisition by Olympus in 2008. As part of that acquisition a whopping US $687 million was allegedly paid in ‘advisory fees’, this amounting to more than one third of the total price of the deal. Clearly potential allegations of bribery are not good for business, the company’s shares having taken a dramatic drop since Friday when Mr Woodford announced he would be meeting with the SFO to investigate the payments.

Whilst it is undoubtedly right that the Act should catch acts of bribery whatever their value, it is hoped that the new corporate offence under the Act will allow for successful prosecution of corporate corruption, which to date has been notoriously difficult under the UK’s previous bribery laws. Bribery can take place at all levels, hopefully our new law will allow prosecution of high value, as well as low value offences.

For further information on the Bribery Act and particularly the corporate offence, please see here.

The Coalition Government have also announced the introduction of a fee to bring an employment tribunal claim, with details to be published and planned exemptions for those on income support.  

An increase from one to two years in the period for which an employee needs to be employed before having the right to bring a claim for unfair dismissal will, on the face of it, be welcome news for employers.  This change will make it easier to dismiss employees without going through a fair dismissal process (and without a fair reason for dismissal, such as performance or conduct).   

However, employers still need to proceed with caution as employees can bring discrimination claims or a whistleblowing claim in respect of their dismissal without any minimum service requirement.  As compensation for these claims is uncapped (although loss based), the remaining risk and exposure is potentially very large and cannot be ignored.  

In practice it is unlikely that the changes to the unfair dismissal rules will result in a reduction in tribunal claims.  What we are in fact likely to see is an increase in discrimination and whistleblowing claims as employees seek to find a way to assert their rights and it is exactly these types of claims which are financially a much more risky proposition for employers.  

Once again, in the transatlantic employment law world, the use of social media has come under the spotlight. How can employers strike the balance between recognizing that sites like Facebook and Twitter are now an integral part of the global internet, without becoming vulnerable when those websites are misused?

The UK conciliation service, ACAS has recently published a guide to social media in the workplace, placing particular emphasis on the challenges and opportunities presented by social media in collective industrial relations. The report explains that the immediacy and usability of such sites has a huge impact on employers. Maintaining the good name of a company becomes increasingly difficult in tense collective bargaining discussions if every step of the process is instantly posted on Facebook or tweeted. The report emphasizes the need for clear policies on the use of social media in the workplace which have been properly communicated to the entire workforce. However, employers also need to recognize that there are business benefits associated with such websites and to put such enthusiasm and energy to good use.

The National Labor Relations Board (NLRB) in the US recently determined that the firing of 5 employees for posting negative tweets about a fellow employee on Facebook was unlawful. The company argued that the tweets were in breach of its policy on cyber bullying in the workplace. However, the NLRB held that the employees were simply venting their frustrations about their job and this was not cause for dismissal. The ruling ordered the reinstatement of the employees and for payment of their back pay. Employers in the US need to take note of the recent NLRB cases on social media which seem to be supporting employees’ use of social media against over-regulation by employers.

Both in the UK and the US, there is a tension between allowing employees to use social media in the workplace, given its unavoidable place in the modern world, and the need to protect the company name and other employees from its misuse. It is a difficult balancing act, made harder by legal considerations and privacy concerns.

However, in the end, both sides need to recognize the strength and weaknesses of social media sites. Whilst they can transmit information quickly and easily to large numbers, communicating key messages in an accessible way, this can also cause problems for employers and other employees alike. Too often comments made in the heat of the moment are disseminated very quickly, causing offence and distress. Employers need to draft clear policies stating what is and what is not acceptable as well as a reiterating the importance of thinking before posting and tweeting. Employees need to be trained on how to use social media for the good in the workplace, without being overly restricted. The scope of the internet is only likely to get wider and more pervasive. Managing that spread will need to be a priority for all employers.

Interestingly, the UK has also just issued new guidance to assist in determining whether an individual is disabled.  The guidance headed “Matters to be taken into account in determining questions relating to the definition of disability” took effect on May 1st 2011.  It appears, however that the scope of the UK guidance is narrower than the new changes implemented by the US regulations.  Many of the areas covered by the Americans with Disability Amendments Act have been considered frequently in the UK courts for several years already. 

In both countries, the issue turns on what can be classified as a physical or mental impairment.  Similar language and terms are used in both jurisdictions.  Physical complaints are often easier to identify whereas mental impairments can prove more complicated and government or federal guidance can be invaluable.

In the UK, a statutory disability occurs when an individual has a physical or mental impairment, with a substantial and long-term adverse effect on their ability to carry out their day-to-day activities.  Certain conditions are deemed to be disabilities automatically such as HIV, cancer and multiple sclerosis.  The standard for substantial adverse effect is not high – the Equality Act 2010 states that this simply means more than “minor or trivial”.  The new guidance provides more clarity as to what may be classified as normal day-to-day activities and includes examples.

In the US, the statutory definition of disability turns on whether the impairment “substantially” limits one or more major life activities.  The new regulations have provided nine rules of construction to determine whether or not the impairment substantially limits major life activities.  It will no be longer necessary to show that the disability significantly or severely restricts the individual from performing major life activities.  There is an increased emphasis on the broad scope of the definition of disability, which should be construed as widely as possible.  The primary object of attention should be whether or not the employers have complied with their obligations under the Americans with Disabilities Act, not whether the individual has “proved their disability”.  The intention is to lower the standard required for someone to be disabled.  Similar to the UK, the effect of mitigating measures such as glasses for example will not be taken into account when assessing the seriousness of a disability.  In the UK, the time limit for an impairment being “long term” is usually 12 months whereas in the US, disabilities, which last less than 6 months, may fall within the Americans with Disabilities Act’s protection.

It will be interesting to compare how the regulations in the US and the guidance in the UK take effect over the course of the next year and whether more individuals are successful in demonstrating that they are disabled and require accommodations to their working life.  Given their wider scope, it seems likely that the US regulations will have an important impact in the US and result in a significant change to the interpretation of disability laws.  US lawyers may find it helpful to review cases from the UK courts for practical pointers as to how the law in the US might evolve given the similarities which are emerging.

Charis Damiano, An English Employment Lawyer in New York
Consultant CM Murray LLP

Comments also welcome via Twitter to @CMMurrayLLP.

The issue of recruitment was debated.  It seems that more and more employers throughout the world are using Facebook and other similar sites as a hiring tool.  Whether or not it is openly admitted is another matter, but the practice goes on.  Some lawyers felt that any information obtained via a Facebook or Twitter search was likely to come out in the interview process in any event.  The legal issue turned on how such information would be utilised.

However, it seems to me that the widespread use of social networking has led to far more information being available about potential candidates on the Internet than ever before.  Particulars about social life, relationships and friendships can be easily gleaned, including very personal details, which the individual may not disclose at an interview or wish their employer to know.  This leads to the risk of certain legal claims as a result.

Whilst privacy issues are more regulated in the UK than in the US, on both sides of the Atlantic there is the potential for discrimination claims if personal data is used inappropriately.  For example, finding out a potential candidates’ sexuality via a Facebook page (which is unlikely to be disclosed an initial interview) could, if the candidate does not get the position, lead to an inference of sexual orientation discrimination.  An online profile picture may reveal information about a person’s religion or whether they have a disability.  If an employer discovers this early on and subsequently disregards a candidate, they may be accused of making the decision because of this knowledge.  In the US, this is sometimes called “Too Much Information” or TMI; it would be better not to have this information given the scope for allegations of discrimination.

The safest option would be to avoid using social networking sites as recruitment tools altogether and rely instead on the interview process, objective questions, skills and experience and references.  However, given the pervasive nature of the Internet at this time, some employers may be determined to use such sites for pre-employment screening; if so, whilst being aware of the risks, they need to decide how they can safely use social media in the recruitment process.  Policies and procedures need to be implemented to ensure that managers don’t inadvertently gain information that could lead to inferences of discrimination if a candidate is unsuccessful.

One option is to obtain a candidate’s consent (and any relevant passwords) to review their Facebook page or similar such sites.  This may help minimise the risk of discrimination allegations, if an employer also states the reason why it needs this information (for example, to ensure that the candidate is not engaged in behaviour which may damage the company or its business interests), is transparent about what information they discover and any decisions it makes as a result.  It also helps to have objective written policies in place on how to source information from the Internet.

Facebook, Twitter and YouTube are here to stay.  There is no doubt that companies with their own Twitter accounts, or Facebook pages can keep their fingers on the pulse, particularly given how fast news travels via the Internet.  Such resources will help attract the best candidates.  However, there needs to be a balanced approach when using social media in recruitment.  Too much information can prove dangerous; relying on tried and tested recruitment methods may prove more beneficial in the long term.

Charis Damiano, An English Employment Lawyer in New York
Consultant CM Murray LLP

Comments also welcome via Twitter to @CMMurrayLLP.

Whilst the actual number of men who will opt to take advantage of the new Regulations remains to be seen, men do certainly seem to be taking a more active role in caring for their children.  A quick internet search shows that by 2007 there were more than 200,000 stay-at-home fathers in the UK (this is an increase of some 83% since 1993!).  What’s more, the number of men working part-time is also slowly on the increase.  The Office for National Statistics states that in November 2007, 23.9% of part-time workers were men whilst by December 2010 that figure had increased to 25.8%.

With much comment about the April 2011 changes and the longer-term goal of promoting a flexible, family-friendly approach to working practices generally, it is important to consider some of the issues facing employers today when employing both mothers and fathers of young children.

For some employers, there is a concern (albeit misplaced) that, commercially, employing working parents may present a cost to the business that is not matched or exceeded by working parents’ contribution to the workplace.  Such concern is demonstrated by the findings of a survey published in January 2011 by global business centre firm, Regus.  The survey found that in August 2009, 38% of UK firms polled confirmed they were planning to hire working mothers.  Worryingly, by August 2010, this had dropped to 26%.  The implied suggestion that employers are shunning working mothers during recessionary times, seems to indicate the perceived high cost associated with employing this social group.

The survey, which canvassed the opinions of business leaders, highlights the main concerns of employers when hiring working mothers: 37% were worried about the lack of commitment, 33% were concerned about working mothers taking further periods of maternity leave a short time after returning to work and 24% had fears about out of dates skills.  These concerns, together with the potential costs that may arise from new legislation (such as the Additional Paternity Leave Regulations) and the perceived heightened risk of a working mother taking costly time off due to childcare issues could lead employers to unfairly discriminate against working mothers.

Reassuringly, 72% of firms in the poll do appreciate working mothers as a valuable part of their employment pool.  Many employers surveyed for the Regus report expressed that working mothers bring valued skills that are often difficult to find in the current market.  This is something with which we agree.  In our experience, working mothers tend to be exceptionally committed and hard-working with excellent organisational and multi-tasking skills (skills developed by working mothers the world over who manage to feed and dress their children, make lunches and get everybody to where they need to be by 9am in the morning!).

Interestingly, according to the survey, 70% of businesses believe that flexible working practices are less expensive than fixed working.  This therefore counters against the cost argument and demonstrates that flexible-working practices requested and employed by many working parents can be used to benefit both employees and employers.  Part-time working, flexi-working, homeworking and teleworking can, essentially result in cost-savings, improved performance and increased customer satisfaction for the employer, whilst the employee benefits from a good work-life balance, which leads to advanced employee engagement, commitment and motivation.

Perhaps the point here is that half-hearted, reactive implementation by employers of flexible-working practices on an ad hoc individual basis does not serve businesses well enough – and that to get the greatest benefit for employers and employees from flexible working, employers should actually proactively embrace and promote such practices for men and women alike in the workplace.

One UK High-Street Bank understands fully the business advantages of looking after both its working mothers and fathers.  People Management Magazine reported how, in November of last year, the Bank introduced a policy allowing staff to take shared parental leave four months ahead of the 03 April 2011 deadline.  The Bank has introduced the new leave as part of its “Passport to Parenting” range of benefits which, it feels, sets out its values in terms of being a family-friendly employer that offers excellent work-life balance.  The Bank believes this initiative has had an essential impact on levels of employee engagement, retention and talent management within the firm today.

As fathers take on a more active role in the upbringing of their children, and father-friendly legislation is put in place, is it likely that employers will begin to consider cost v contribution factors when employing working fathers in a similar way as seems to be standard practice with working mothers?  That remains to be seen.  A flexible approach to working parents generally seems sensible.  By allowing employees – regardless of whether they are male or female – the flexibility to balance their work and family lives in an acceptable way, the benefits to the employer are clear.  Employees, generally speaking, will be appreciative, motivated and committed to the employer that respects and values their family life.  This, ultimately, will allow both employees and employers to benefit from the employment relationship and the employee’s contribution will outweigh any cost to the employer.

Kay Osborne, Deputy Practice Director (HR)