Category Archives: Insight Article

First, the Queen conducted the State Opening of Parliament in a hat and coat instead of the traditional gown and crown. Then the Speaker of the House declared jackets and ties an unnecessary convention for male MPs. And now the Synod, the Church of England’s ruling body, has agreed to a change in canon law that will see clergy ditching their traditional robes when taking communion or conducting weddings, funerals or baptisms.

But there are still situations where rigorous dress codes are maintained, notably the ‘almost entirely white’ clothing rule that is imposed strictly by the All England Club during the annual Wimbledon Grand Slam tennis tournament. Umpires have forced players to change and resort to borrowing kit when told to remove offending colours or flashes that have broken the rule. And while many big names have tried to resist the ruling, it remains carefully guarded by the club, despite dating from the 1800s.

When it comes to dress codes in a workplace setting, there are three main areas where employers have obligations:

1. they must comply with equality legislation on gender, religion and disability;
2. any requirements must take account of health & safety issues; and
3. where employees are required to purchase specific clothing, this must be reflected in National Minimum Wage calculations.

Employment lawyer, Karen Cole, outlines below the main issues employers need to consider when drawing up and implementing dress code policies.

The design considerations for dress codes

Gender discrimination

The treatment of temporary receptionist Nicola Thorp, who was sent home without pay for failing to comply with a requirement to wear heeled shoes, won much coverage and led to the matter being debated in Parliament, where MPs highlighted the requirements of employers under the Equality Act 2010.

The Act makes it illegal to discriminate against someone with a protected characteristic, whether directly, indirectly or by harassing them. In the context of dress codes, the protected characteristics of gender, religion, and disability are likely to be relevant. So, if a man is not required to wear high heels, a requirement for women to do so may be discriminatory on sexual equality grounds.

This does not mean that detailed dress codes may not be different for men and women, but they must be broadly similar in their intended effect, and sanctions for breach should be the same.

In one case, a trainee police constable alleged that he was discriminated against because of his shoulder-length hair, which he was told to cut or face disciplinary action. He argued that a woman with hair neatly tied in a bun, as his was, would not have received the same order. The Employment Appeal Tribunal rejected the argument, saying that such differences in treatment do not necessarily amount to more favourable treatment of one sex compared with the other.

Religious discrimination

The topic of religious discrimination is complex, and two recent cases have added to the confusion among employers.

Nadia Eweida, a practising Coptic Christian, lost her job with British Airways after refusing to keep her crucifix necklace out of sight when wearing her uniform. In a landmark judgment, the European Court of Human Rights (ECHR) said that Ms Eweida’s right to manifest her religion under article 9 of the European Convention of Human Rights had been breached. The ECHR said that a fair balance had not been struck between her desire to manifest and communicate her religious belief and, on the other side, her employer’s wish to project a certain corporate image without religious connotations.

But in a recent joint case over the wearing of Islamic headscarves, the European Court of Justice (ECJ) decided that employers could have a policy of religious neutrality in their dress codes, ruling that prohibiting the wearing of a headscarf was not direct discrimination. However, it could amount to indirect discrimination. The employer would need to be able to show that if there was a greater negative effect on one group of employees, there must be a fair reason for doing so and that it was appropriate and necessary in all the circumstances. In this case, the ECJ highlighted the difference between employees who interact with customers and those who do not.

When handling religious views in the workplace, employers must balance the requirements and duties required by the company and the employee’s right to practice and express their religion.

Health and Safety

Health and safety law requires employers to conduct a workplace health and safety risk assessment for all workers, with a continuing obligation to provide a safe system of work, and no one is surprised that they are required to wear a hard hat and hi-vis vest when visiting a construction site.

But the risks associated with many aspects of dress code may be overlooked in such assessments, despite well-documented outcomes. For example, high heels are known to lead to joint pain, back problems, and bunions and may potentially contribute to sprains and falls. As well as being unlawful under the Equality Act, requirements on female employees to wear high heels may breach health and safety laws.

Such risk assessments are also essential if an employer wants to impose specific requirements, such as a ban on jewellery, that may otherwise be taken as indirect discrimination, for example, where someone was banned from wearing a religious symbol, such as a crucifix. Suppose there is a health and safety risk, for example. In that case, where employees operate potentially dangerous machinery where jewellery could be caught, this may justify such a ban.

Uniforms and the National Minimum Wage

Where employees are required to wear a specific form of dress or uniform at their own expense, employers need to ensure the cost does not impact National Minimum Wage compliance.

The retailer Monsoon found itself unintentionally breaching the regulations because it required staff to buy and wear items from the retail chain’s clothing range. HMRC investigated and said that as the wearing of Monsoon clothes was compulsory, the amounts spent by the employees on clothes for work in any pay reference period should have been deducted from their pay for that period before calculating whether they had received the National Minimum Wage. For Monsoon, this resulted in back-pay of more than £100,000 to reimburse employees and a fine of £28,147.81.

This applies equally where a loose policy is in place, for example, requiring a certain colour to be worn. HMRC gave as an example the requirement for hairdressing staff to wear white t-shirts and black trousers for work, saying this should be treated in the same way.

Call Karen Cole today if you have any concerns over dress codes.

Note: This is not legal advice; it provides information of general interest about current legal issues.

There are five potentially fair reasons for the dismissal of any employee under the Employment Rights Act 1996 (ERA 1996):

1. Conduct
2. Capability
3. Redundancy
4. Breach of a statutory restriction
5. Some other substantial reason of a kind to justify the dismissal (SOSR)

SOSR is a residual “catch-all” potentially fair reason for dismissal. Whilst there is no statutory definition of the term or any statutory guidance, case law has made it clear that the reason must be substantial.

Interpretation of what is substantial is subjective and will depend on the facts and the type of case. The reason must also be of a kind which will justify the dismissal (rather than any lesser sanction) of an employee holding the job the employee actually held.

Common examples of scenarios that may constitute an SOSR dismissal

Protection from competition

Where an employee acts in a way that falls short of a breach of duty or is in a situation that creates a potential conflict with the employer’s interests, the employer may be able to dismiss the employee by relying on SOSR.

The most common types of cases in this category relate to conflict of interest or restrictive covenants.

Cases involving conflicts of interest

To be able to succeed in relying on the risk of competition as being SOSR, the employer must be able to provide evidence to substantiate its perception that the employee poses a risk to its business interests. The evidence will be as to the nature of the information to which the employee has access.

If an employee has limited access to commercial information, an employer will struggle to show that it was concerned about a risk at all. It is also usually necessary to show that the employee has close connections to a competitor (or an employee of a competitor) and that the employer fears the employee may leak confidential information.

To establish an SOSR dismissal, in these circumstances, the employer must show that continuing to employ the employee would give rise to a real commercial risk.

Cases involving restrictive covenants

The scope of any restrictive covenant will have a bearing on whether an employer can rely on it for an SOSR dismissal. Case law has established dismissal following a refusal to enter new restrictive covenants, which was found to be for SOSR and potentially fair.

Personality clashes

Personality clashes or irreconcilable differences between colleagues can amount to SOSR. However, the conflict would have to cause a substantial disruption to the business.

Other examples

• The non-renewal of the fixed-term contract of an employee recruited as maternity leave cover.
• The dismissal of an employee for a theft conviction unconnected with his employment.
• The dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree to.

The two-stage test for any dismissal will apply notwithstanding the potentially fair reason for the dismissal.

Having identified circumstances giving rise to an SOSR dismissal, the employer must ensure that it follows a fair procedure and acts reasonably in dismissing the employee for that reason, taking into account all the circumstances.

Confused about SOSR dismissals? Call employment partner Karen Cole today to clarify the position.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

A zero-hours contract describes casual working arrangements between an employer and an individual. Generally, the hours to be worked are left (deliberately) undefined. An employer is not obligated to provide any work and will pay only for work undertaken.

How do zero-hours contracts apply to workers and employees?

Such contracts are used for people classed as both ‘workers’ and ‘employees’. However, there has been debate over whether zero-hours contracts may exploit workers. So, to explore how the contracts can be used fairly, it’s worth explaining the difference between the two. Both categories are entitled to:

• the national minimum wage
• paid annual leave and rest breaks
• protection from discrimination

Employees are also entitled to employment rights such as statutory sick pay and family-friendly rights such as statutory maternity and paternity leave and pay. Perhaps crucial for most employees is the right not to be unfairly dismissed.

Workers do not have these rights – but could gain them if the way their employer treats them enhances their status to that of an employee. This could include being provided with regular working hours or carrying out a disciplinary procedure concerning the worker. For this reason, zero-hours contracts are often used to maintain the worker’s employment status.

“ZERO-HOURS EMPLOYEES AND WORKERS HAVE THE RIGHT NOT TO BE DISCRIMINATED AGAINST FOR TAKING OTHER WORK”

Why are zero-hours contracts seen as exploitative?

Regarding zero-hours contracts, debates over exploitation usually focus on those which include a clause preventing workers from accepting work from anyone else during the contract’s life. Moreover, many workers are unaware of their statutory rights under the contract. This has understandably attracted much criticism.

To make things fairer for workers, in January 2016, The Employment Rights Act 1996 was amended to render exclusivity clauses unenforceable. In addition, the Exclusivity Terms in zero-hours Contracts (Redress) Regulations 2015 has provided individuals with a remedy against employers who seek to include an exclusivity clause in a contract:

• zero-hours employees and workers have the right not to be discriminated against for taking other work;
• zero-hours employees have the right not to be unfairly dismissed if they don’t comply with an exclusivity clause.

But despite these steps, zero-hours contracts remain under scrutiny. For example, a report published by the Resolution Foundation at the end of 2016 suggests that workers on zero-hours contracts are £1,000 a year worse off than employees doing the same work. It estimated that zero-hours workers suffer a pay penalty of 6.6% which, when working 21 hours per week, amounts to £1,000 per year.

Are there any benefits?

The use of zero-hours contracts can benefit both parties if used fairly. They can provide a flexible workforce to meet a temporary or changeable need for staff and are particularly popular in the retail and hospitality industries. Public and voluntary sector organisations also make use of them. From a worker’s perspective, they can provide much-needed flexibility. They are recognised as giving young and older people work opportunities that might not otherwise exist.

“FROM A WORKER’S PERSPECTIVE, ZERO-HOURS CONTRACTS CAN PROVIDE MUCH NEEDED FLEXIBILITY”

How might zero-hours contracts be used in the future?

The Business, Energy and Industrial Strategy Committee has launched an inquiry focusing on the changing nature of work and the status and rights of agency workers, the self-employed, and those working in the gig economy. It will also consider the balance of benefits between workers and employers, flexible contracts and zero-hour contracts to explore what regulations might be needed in the future.

In short…

• Zero-hours contracts can be used for employees and workers, but both have different rights
• Government regulations have cracked down on exclusivity clauses to counter exploitation
• The use of zero-hours and flexible contracts is likely to continue to rise

Speak to Karen Cole today if you have any queries about zero-hours contracts.

Note: This is not legal advice; it provides information of general interest about current legal issues.

When tweets become twibels…

The reminder follows the news that opinion columnist Katie Hopkins has been refused leave to appeal against a recent High Court libel verdict, where she was found to have published defamatory tweets, or what’s been coined ‘twibel’.

Anyone using social media is a publisher, putting information out into the public domain, but unlike newspapers and book publishers, most businesses don’t have a good understanding of publishing law and how to avoid breaching it. Similarly, many businesses are not considering how their social media posts may breach advertising regulations as the boundaries between paid-for advertising and other forms of communication become more blurred.

It’s the sort of confusion that led to a complaint being made that a tweet sent from the account of England football captain Wayne Rooney, as part of his sponsorship by Nike (UK), was not clearly marked as a marketing communication. The tweet read:

“The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1”.

Although in that case, the Advertising Standards Authority found that Nike (UK) had not breached the code of conduct, saying the tweet was obviously identifiable as a Nike marketing communication, it may not always be clear to businesses where the line is drawn.

For Katie Hopkins, the tweets she posted that were found to be defamatory implied that prominent poverty campaigner and writer Jack Monroe had defaced a war memorial in a case of mistaken identity. Monroe offered her the chance to publicly apologise or face legal action, but Hopkins refused. When the case reached the High Court, the tweets were found to have caused ‘serious’ harm to Monroe’s reputation. Hopkins must pay damages of £24,000 to Monroe, together with Monroe’s legal costs.
In reaching the judgment, the court had to determine whether the tweets met the requirement for harm that is set out in the Defamation Act 2013, and experts say the ruling is the most important case to date involving libel on social media.

Our employment lawyer, Karen Cole, said:

“Controlling social media content is a huge issue for business. It’s a fast-moving arena and often posts, tweets, retweets and comments are the subject of instant decision-making. When careful reflection isn’t part of the equation, it’s not surprising that it can lead to problems. It is important that social media policies are kept under constant review and that everyone understands the boundaries they are operating within, through both the company’s marketing strategy and their terms of employment.

“Staff could also learn from the 26-point guide [page 25 onwards] on how to use Twitter, published by the High Court as an appendix to its official ruling in the Hopkins case, which provides a summary of how the platform works. It makes for useful reading, even for those who think themselves experts, as a reminder of who will receive postings when tweeting, re-tweeting or replying.”

Karen added:

“It’s important to have a good crisis management plan in place as well, so that if the worst happens and a mistake is made, then everyone knows what to do if something inappropriate has been posted. Taking swift action with a public retraction is a good start and will demonstrate a willingness to tackle the problem. In the case of Katie Hopkins and her mistaken tweet about Jack Monroe, if she had been quick to correct herself and made a public apology that reached the original audience of her tweets, it’s quite likely the case would not have passed the necessary ‘serious harm’ test for defamation and the case may never have gone to court.”

Speak to Karen Cole about your social media policy today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Prior to the launch of the new Ministry of Justice (MOJ)’s website, Welsh and English ET decisions were found in the Bury St Edmunds ET, and Scottish decisions were found in the Glasgow ET. Decisions were only accessible upon request and were subject to a fee, which was at odds with the civil courts and the Employment Appeal Tribunal, where judgments were and are available to the public. This discrepancy caused concern, and in the interests of access to justice, the MOJ launched its new website, making all British ET decisions publicly available.

The MOJ’s website currently contains some 200 decisions from 2015 onwards, with future ET decisions being uploaded to the website.

The way in which ET proceedings are dealt with has not changed, with hearings usually being heard in public unless an ET makes an order for privacy restrictions.

There could well be a practical impact for employers because of the increased accessibility of the decisions.

The MOJ’s website includes a search tool, enabling the user to search the content of the ET decisions. This means that a member of the public can search against the name of an employer, employee or any term that may be industry specific. In due course, the content of decisions may be listed on the results page of internet search engines when an employer’s name is simply entered in the search bar.

This development may well cause concern for some employers. The risks of adverse publicity have always been factored in the decision-making process when pursuing/defending a claim. However, more weight will need to be given to the subject. Such consideration may encourage the early settlement of employment disputes.

Employees bringing a claim could try to draw inferences about the business from previous decisions. These have the potential to be taken out of context. Written reasons are not always given in ET decisions, giving rise to only a partial view if a judgment is viewed in that instance.

There is always a flip side…

Employers can now search for any decisions involving applicants or employees. However, care must be taken to ensure employers do not fall foul of giving detrimental treatment because of the search. The laws protecting individuals from acts of discrimination do not stop at just employees.

Increased transparency in ET decisions should also give useful examples of how ETs treat issues of fact and law. This could prove particularly useful to those acting in person to clearly present their case to the ET, making it easier for employers to respond.

ET decisions will also include details of the sum awarded in claims which should help to encourage realistic expectations for settlement purposes.

Call Karen Cole today if you have any queries regarding Employment Tribunal Decisions.

Note: This is not legal advice; it is intended to provide information of general interest about current legal issues.