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Direct religion or belief discrimination

This month we have an Interesting decision by the European Court of Justice on direct religion or belief discrimination:

In IX v WABE eV; MH Müller Handels GmbH v MJ, Case C-804/18 the European Court of Justice held that a prohibition on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not in fact constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive (No.2000/78), provided that the rule is applied in a “general and undifferentiated” way.

The ECJ also held that the indirectly discriminatory effect of such a rule can be justified by an employer’s genuine business need to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes.

Whilst UK courts and tribunals are no longer bound by this decision it’s open to our Courts and Tribunals to have regard to it in any case where it’s deemed relevant.

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Direct sexual orientation discrimination and harassment

In Secretary of State for Justice v Plaistow, EAT 6th July 2021 the EAT upheld an employment tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of “career-long” loss. The claimant in this case had suffered PTSD, depression and symptoms of paranoia, and his condition was likely to be life-long. This was one of the rare cases where a career-long basis for assessment was deemed appropriate.

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Employment status – “workers” and therefore employment relationship or not?

In the case of Independent Workers Union of Great Britain v Central Arbitration Committee and anor, [2021] EWCA Civ 952 the Court of Appeal has held that Deliveroo riders do not fall within the scope of the trade union freedom right under Article 11 of the European Convention on Human Rights.

The Court confirmed that the question of whether Article 11 is engaged in this respect depends on the existence of an employment relationship, which is to be determined having regard to the International Labour Organisation (ILO) Recommendation 198 (2006).

It upheld the High Court’s decision that the riders were not in an employment relationship with Deliveroo. Delivery riders for Deliveroo work under non-negotiable ‘supplier agreements’, which describe them as independent contractors and state that there is no obligation on Deliveroo to provide work and no obligation on the rider to be available at any time or to accept jobs.

The agreements also allow riders to provide a substitute, who may be employed or engaged directly by the rider, without need for approval by Deliveroo. The riders were not therefore workers.

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Indirect Discrimination – Family friendly working and childcare- “the childcare disparity”

Indirect discrimination occurs where:

· The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.

· The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).

· The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).

· The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

In Dobson v North Cumbria Integrated Care NHS Foundation Trust UKEAT/0220/19/LA(V), the EAT ruled that Employment Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours. This approach may help working mothers show that onerous working patterns are indirectly discriminatory on the grounds of sex.

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Furlough Extended!

Update 05/11/20:

Chancellor Rishi Sunak has today announced that a further extension has been implemented to the furlough scheme taking it right through until March 2021. As below, the scheme was originally due to end on 31st October but had already been extended to cover the second lockdown which came into effect today and is expected to be in force until December 2nd.

You can find the full Government news story on the second extension here: Government extends Furlough to March and increases self-employed support

As announced on 31st October 2020, the government have extended the Furlough scheme by an additional month which will entitle employees to receive 80% of their salary for hours that are not worked. This was met with some distain as many companies had already had to lay their staff off prior to this announcement as they believed the scheme to be ending.

Coronavirus Job Retention Scheme (CJRS) – also known as the Furlough scheme – will now remain open until December, with employees receiving 80% of their current salary for hours not worked, up to a maximum of £2,500.

In addition, business premises forced to close in England are to receive grants worth up to £3,000 per month under the Local Restrictions Support Grant. Also, £1.1bn is being given to Local Authorities, distributed on the basis of £20 per head, for one-off payments to enable them to support businesses more broadly.

To give homeowners peace of mind too, mortgage holidays will also no longer end as originally planned.

Chancellor Rishi Sunak said:

Over the past eight months of this crisis we have helped millions of people to continue to provide for their families. But now – along with many other countries around the world – we face a tough winter ahead.

I have always said that we will do whatever it takes as the situation evolves. Now, as restrictions get tougher, we are taking steps to provide further financial support to protect jobs and businesses. These changes will provide a vital safety net for people across the UK.

You can read the full government press release here:

Full Government Press Release

If this is the first you have heard about Furlough or the Job retention Scheme or you would like more information about the scheme itself then please check out our full definitive guide here:

Furlough: The Definitive Guide