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January 2013 Updates

A day of (un)rest

In the recent case of Mba v The Mayor & Burgesses of the London Borough of Merton, the Employment Appeal Tribunal ("EAT") decided that it is not discriminatory to require a Christian worker to work on a Sunday.

Ms Mba worked as a care worker in a residential care home for disabled children. Her contract required her to work on Sundays, but her belief forbade this. Given that the home was understaffed, her employer began to give her Sunday shifts.

The EAT said that the discriminatory impact of such an action should be judged against the Christian faith as a whole, not the individual Claimant. It decided that, on this basis, it was not discriminatory to require Ms Mba to work on a Sunday.

Landmark religious discrimination ruling

Following on from the above, and our September 2012 update, the European Court of Human Rights has delivered its long awaited ruling on four religious discrimination cases in Eweida and Others v The United Kingdom.

Nadia Eweida, an employee of British Airways, was required, as part of BA's uniform policy, to conceal her crucifix necklace under her clothes. Her discrimination claim was rejected by the Employment Tribunal and the Court of Appeal. However the European Court of Human Rights ("ECHR") upheld her appeal.

The court ruled that the UK's domestic courts had not struck a fair balance between BA's legitimate wish to protect their corporate image on the one hand and the Claimant's right to display her religion on the other.

However, the ECHR dismissed the other three cases. These cases included Shirley Chaplin, a nurse whose employer informed her that wearing a crucifix outside of her uniform was a health and safety risk. The remaining cases involved two Christians who were dismissed for failing to carry out duties that they considered to condone homosexuality.

Although the ECHR has struck a careful balance between cases involving the right to display religion in the workplace, this is undoubtedly an interesting development within the realms of religious discrimination. Employers will need to consider updating their policies and working practices in light of this ruling.

New statutory payment rates for 2013 announced

The Department for Work and Pensions has announced that the proposed rates of statutory benefits will increase as follows:

  • From 6 April 2013, the statutory sick pay rate will increase from £85.85 to £86.70 per week, with the weekly earning threshold also rising from £107 to £109.
  • The standard rate of statutory maternity pay, statutory paternity pay and statutory adoption pay will increase from £135.45 to £136.78 per week, with the weekly earning threshold increasing from £107 to £109. These changes will come into force on 7 April 2013.
  • Also with effect from 7 April 2013, maternity allowance will increase from £135.45 to £136.78 per week, with the earnings threshold remaining at £30.

Too late for a very important date

In DeSouza v Manpower UK Ltd, the Employment Appeal Tribunal ("EAT") upheld the initial Tribunal's decision that the claim was presented out of time.

The claim was presented just one day after the limitation period of three months, but, because this was entirely the Claimant's fault, the EAT decided it was not just and equitable to extend the time limit.

The Claimant had seen a solicitor prior to and following her dismissal. Her solicitor had advised her of the relevant deadlines, and she had initially declined to authorise her solicitor to draft the claim form due to financial concerns. The Tribunal found that her solicitor had not been at fault, and that it was in fact the Claimant who had caused the delay.

This case demonstrates the importance of being a conscientious party to Tribunal proceedings.

Important employment law changes

The Department for Business, Innovation and Skills has confirmed that it is:

  • Capping the compensatory award for unfair dismissal (save for an unfair dismissal which arises due to whistle blowing) at 12 months' actual pay for the employee in question. Should their total yearly pay exceed the current limit of £74,200, it will be capped at that amount instead.
  • Making important amendments to TUPE, which deals with transfers of undertakings, to, for example, remove service provision changes from the definition of a TUPE transfer and repeal the employee liability information provisions.
  • Consulting on an early conciliation process via Acas.

The Department for Work and Pensions has announced that:

  • A new Health and Work Advisory Assessment Service will be introduced in 2014. The purpose of the service will be to provide state funded occupational health testing for any employees who are off sick for more than four weeks.

More details will follow in due course.


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