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Employment Matters

CONTENTS 1 Refusing to allow an employee time off work 2 Enhanced paternity pay? 3 The law on negligent references is extended 4 Capability and Performance Management in Schools

HR and Employment News Summer 2011

Refusing to allow an employee time off work to attend Friday prayers did not amount to indirect discrimination In the recent case of Cherfi v G4S Security Services Ltd, the EAT has upheld a tribunal’s decision that an employer’s refusal to allow a security guard to leave a client’s site on Friday lunchtimes to attend Friday prayers at a mosque did not amount to indirect religious discrimination. The claimant employee was a Muslim and was employed as a security guard to work on one of the employer’s client’s sites in Highgate. The client required all security guards to remain on site for the entirety of their shifts for safety reasons. As a consequence, the employer refused the claimant’s request to leave the site on a Friday to attend prayers at the local mosque. However, it did offer to change the employee’s working days to include a day at the weekend instead of Fridays. There was also a prayer room on site

not provide security guards to remain on the client’s site all day

which the claimant could have used. The claimant refused these

then it would incur financial penalties and would be at risk of losing

options and, after a period of not working Fridays by taking those

its contract with the client. In the EAT’s view the employer’s

days off as sick leave, annual leave and authorised unpaid leave,

justification was not based solely on cost considerations.

brought a claim against the employer for indirect religious discrimination. The tribunal rejected his claim, saying that the

So does this decision mean that you can refuse to allow such an

employer was justified in requiring employees to remain at the

employee to attend prayers? No. As will be noted, the employer

site throughout their entire shift.

had done a lot to try and minimise the effect of preventing the employee from attending prayers on a Friday. As stated above, a

The EAT was tasked with carrying out a reasonable balancing

careful balancing exercise will be undertaken by the Tribunal in

exercise to determine whether the discriminatory effect on the

the event that the matter comes before it, so it is important that one

claimant employee outweighed the reasonable business needs of

does not institute a blanket ‘no’ policy, but rather can show that

the employer. Although refusing to allow the employee to attend

you considered the particular circumstances and sought to minimise

communal prayers at a mosque did constitute a provision, criterion

the impact.

or practice which placed the employee at a disadvantage, it was a proportionate means of achieving a legitimate aim, namely the

For further information please contact Nick Watson –

operational needs of the employer’s business. If the employer did

Enhanced paternity pay? Our Autumn 2010 issue of Employment Matters featured an article on the change in the law in relation to paternity leave. As you may be aware, under the Additional Paternity Regulations 2010 ‘fathers’ of babies due on or after 3 April 2011 and adoptive ‘fathers’ who have been notified that they have been matched with a child on or after that date, are entitled to seek additional paternity leave of between 2 and 26 weeks (starting 20 weeks after the child is born); effectively swapping maternity leave with the mother. Since the implementation of the new Regulations, the issue has arisen as to whether an employer who offers enhanced maternity pay should also offer enhanced paternity pay to those employees who take additional paternity leave. If an employer decides not to offer enhanced paternity pay for employees on additional paternity leave then it could face discrimination claims. Paternity leave can be taken by members of either sex (for example in the case of homosexual couples or adoptive parents). Therefore, the appropriate comparator for a man taking additional paternity leave is a woman taking additional paternity leave. If a woman taking additional paternity leave would also not receive enhanced paternity pay then it may be possible to defend a discrimination claim. At the time that the Regulations were implemented the Labour Government stated that there was no requirement for employers to offer enhanced paternity pay to employees taking additional paternity leave. However, this issue has become a moot point since the ECJ case of Roca Alvarez v Sesa Start Espana ETT SA. In this case

“If an employer decides not to offer enhanced paternity pay for employees on additional paternity leave then it could face discrimination claims”

the ECJ held that the purpose of a law which allowed a mother to

Unfortunately, as the Regulations are relatively new there is no

take time off work to feed her baby whilst she was an employee

specific guidance available from the courts or tribunals as yet. Given

and which allowed a father to take time off only if both he and the

the ambiguity, employers may decide to err on the side of caution

mother were employed, was to ‘reconcile family life.’ Therefore the

and offer enhanced payment for additional paternity leave if such

disparate treatment of men and women breached the Equal

enhanced payment would have been available during that period

Treatment Directive.

taken as additional maternity leave to minimise the risk of any

As the Regulations allow ‘fathers’ to start to take the additional paternity leave 20 weeks after the child is born, those employers who offer enhanced maternity pay for a period which extends

discrimination claims. Alternatively, employers may decide to await until case law is established in this area (as it undoubtedly will be) before deciding how to proceed.

beyond the first 20 weeks after the child’s birth are most at risk of

For further information please contact Nick Watson –

discrimination claims.

The law on negligent references is extended to include other statements Up until recently, the law recognised that if an employer chose to

of its courses were linked with SC it was impractical to employ Mr

give a reference, then it could be liable for negligent misstatement

McKie. Mr McKie sued for damages based on his lost income at

if proper care was not taken in its preparation.

the UoB.

The High Court case of McKie –v- Swindon College (in which

Mr McKie’s case was that there was no justification for the email.

Michael Brotherton of our Education team acted for Mr McKie)

The Court agreed. The Judge commented upon the procedures

has extended these principles to include a statement about a

at SC that gave rise to the sending of the email. He described

former employee, even though that statement was not actually

them as “…slapdash, sloppy, failing to comply with any sort of

a reference.

minimum standards of fairness…”.

In 1995 Mr McKie was appointed to a position at Swindon College

The Judge decided that although the email in question was not

(SC). In November 2002 he left SC, at which point he received

in any sense a reference and thus there was no existing case law

excellent references from them. In May 2008 he took employment

governing his decision, SC had assumed responsibility to take

at the University of Bath (UoB). In common with many educational

reasonable care by writing the email and accordingly they were

establishments, the UoB oversaw degree courses at certain further

liable to Mr McKie.

education colleges, one of those being at SC. Shortly after he had started work at the UoB an email was sent

So what are the lessons to be learnt from this? ◆ Correspondence sent in relation to a former employee’s fitness

from the Human Resources Manager at SC to his equivalent at

to work should be channelled through a central and controllable

UoB. It stated that SC would not accept Mr McKie on their premises

source such as an HR department;

or delivering to their students due to “very real safeguarding concerns…and serious staff relationship problems…”. The email also indicated that no formal action had been taken against Mr McKie because he left employment before it was instigated.

◆ Any statement that is made, whether formally in a reference

or informally in an email should be capabale of being reasonably verified.

As a result of this email, and after a meeting with Mr McKie, the UoB

For more information please contact Peter Woodhouse -

terminated his employment, saying that as a substantial proportion

New Recruit: Human Resources Adviser We are pleased to welcome Sarah Turner as part

and with Victoria principally based in our Bath

of the employment team. Sarah and our existing

office we are able to provide HR services across

HR consultant, Victoria Blake, are both experienced

the whole of the South of England, the Midlands

HR professionals who are able to offer a wide

and indeed beyond.

range of HR advice to support client’s current and future business objectives. Sarah is principally based at our Cambridge office

If you would like to discuss how we can assist you with your HR requirements then please contact Nick Watson –

Capability and Performance Management in Schools Managing poorly performing teachers can often be a difficult issue for schools. The White Paper ‘The Importance of Teaching’ aims to streamline and simplify appraisal and capability in schools. The suggested arrangements for performance management are purported to be very different from the prescriptive Education

◆ Introduce an optional new model policy that deals with

performance and capability issues ◆ Allow poorly performing teachers to be removed in about a term ◆ Clarify that staff illness need not bring disciplinary/capability

processes to a halt

(School Teacher Performance Management) (England) Regulations 2006. They allow schools greater flexibility and freedom to control their own affairs, making it easier to manage poorly performing

If you feel strongly about this issue then we encourage you to contribute to the consultation by visiting the link below: before 16 August 2011.

teachers. The DfE state that the proposed changes will: ◆ Introduce simpler performance management regulations

For further information please contact Nick Watson –

Your Contacts Nick Watson Partner


Peter Woodhouse Partner email:

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437 email:

© Stone King LLP 2011

Employment Matters deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ



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