Employment Law E-Bulletin Issue 50

• Gareddu v London Underground Ltd UKEAT/0086/16: Refusal of holiday to attend religious festivals was not indirect discrimination
• Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51: Plumber was a worker, not a self-employed contractor
• ACAS draft guidance on gender pay gap reporting
• Three types of proceedings now exempt from all employment tribunal fees

Gareddu v London Underground Ltd UKEAT/0086/16: Refusal of holiday to attend religious festivals was not indirect discrimination

The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision to reject a claim of indirect religion or belief discrimination on the ground that the claimant's asserted need to take five consecutive weeks' leave in order to attend a number of religious festivals was not genuine.

G, a practising Roman Catholic from Sardinia, had with his brothers, historically returned to the area of Sardinia where their mother lives in order to be together and to attend religious festivals. For four years his employer, London Underground Ltd, had permitted him to take five consecutive weeks' annual leave in order to be able to do so (between 2009 and 2014). Thereafter, a new manager refused permission. G brought a claim of indirect religion or belief discrimination under S.19 of the Equality Act 2010, arguing that attendance with his family at ancient religious festivals in Sardinia was part of his religion and that, as such, he was being prevented from manifesting this.

A tribunal dismissed the claim and the EAT dismissed the appeal. The case was not about whether participating in festivals in Sardinia is a typical manifestation of the religious beliefs of Sardinian Catholics. The tribunal's finding was simply that G's particular description of his religious belief was not made in good faith. It transpired that G did not attend exactly the same festivals each year and some years attended fewer festivals than others. In the EAT's view, the mere fact that attendance at a single festival is a genuine manifestation of religious belief does not inevitably mean that attendance for a five-week period to do so is also a genuine manifestation.

This case is fact sensitive; therefore employers should be mindful that in a seemingly similar case an employee may well be able to argue that the manifestation of a religious belief is the genuine reason behind a request for a particular length of holiday. The manifestation of religious beliefs can vary greatly and an employee does not have to prove that it is a core component of their religion or belief. However, it is also important to note that, in such circumstances, an employer may be able to justify a refusal by showing that the limitation of holiday to a particular period is a proportionate means of achieving a legitimate aim.

Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51: Plumber was a worker, not a self-employed contractor

This case follows on from the recent decisions in Aslam and others v Uber BV and others ET/2202550/15 and Dewhurst v CitySprint UK Ltd ET/220512/2016 regarding worker status. As discussed in our E-Bulletin issues 49 and 47, some key employment rights are only provided to people who are regarded by law as 'employees', however, many other rights are provided to a wider category of 'workers' as defined in the Employment Rights Act 1996. This definition is also found in the Working Time Regulations 1998.

Pimlico Plumbers engaged Mr Smith as a plumber for approximately five and a half years and terminated the relationship approximately four months after Mr Smith suffered a heart attack. Mr Smith subsequently issued proceedings in the employment tribunal claiming unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay, unlawful deductions from wages and disability discrimination. These are claims which are only open to employees or workers as defined in the acts above. The Court of Appeal upheld the finding that Mr Smith was a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998, as well as an ‘employee’ within the extended meaning of that term in the Equality Act 2010.

The court looked beyond Mr Smith’s contract labelling him as an independent contractor. In a largely fact-sensitive decision, the court determined that he was required to provide personal service and that he was not in business on his own account; he was an integral part of Pimlico Plumbers' operations and was subordinate to it.

The decision comes at a time of significant interest in worker status issues and highlights the difficulties that parties can face in determining an individual's legal status for employment law purposes and provides a useful summary of authorities, particularly on personal service.

Acas draft guidance on gender pay gap reporting

The Government and Acas have published draft non-statutory guidance on managing gender pay reporting in the private and voluntary sectors. The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (“Regulations”), which are due to be brought into force on 6 April this year, provide that employers with at least 250 employees must calculate and report the difference between the average hourly pay of men and women within their organisation. For further details please see our article by Rebecca Fielding, Associate in the employment team, which was published on 20 December 2016.

The guidance begins by examining what the gender pay gap is and how workplaces contribute to it. Whilst the draft guidance reiterates the obligations imposed by the Regulations it goes further and considers it good practice to implement plans to manage the gender pay gap, for instance, developing initiatives to encourage female mentoring and development.

Acas have confirmed that the Equality and Human Rights Commission (“EHRC”) "has the power to enforce any failure to comply with the regulations" and that employers will also run a reputational risk if they fail to publish the information. An EHRC spokesperson said: "a company's failure to comply with the requirement to publish its pay gap will be an "unlawful act" within the meaning of section 34 of the Equality Act 2006. As with any aspect of equality law, to ensure companies comply with the law, we may decide to improve awareness and understanding of this new requirement, or, if we receive evidence that a company has failed to publish its pay gap information, we may undertake pre-enforcement action, by working with them to improve their practice."

Three types of proceedings now exempt from all employment tribunal fees

As a result of the government's review of employment tribunal fees, the following three types of proceedings are now exempt from fees:

• references to the employment tribunals relating to a redundancy payment from the National Insurance Fund (“NIF”) under s.170 of the ERA 1996;
• complaints that the Secretary of State has failed to make any, or insufficient, payment out of the NIF, under s.188 of the Employment Rights Act 1996; and
• complaints under s.126 of the Pension Schemes Act 1993 in respect of payments under s.124 of that Act, covering certain unpaid pension contributions.

Whilst no legislation has yet been published, this change is to take effect immediately and HMCTS has amended guidance on its website explaining that no fee is payable for such claims and these claims need to be submitted by post. It may be useful to note that if any error occurs and a payment is made for exempt claims, a refund will be made. For any such claims submitted before 31 January, no refund of the issue fee will be given, but no hearing fee will be charged.