Top 5 employment law decisions in 2018
1) Lee v Ashers Bakery – The Supreme Court has ruled that refusing to personalise a message supporting gay marriages does not amount to discrimination on the grounds of sexual orientation.
In Lee v Ashers Bakery a cake business run by a Christian couple received an order for a personalised cake, which they initially accepted. The couple later refused to carry out the personalised order on the grounds that the personalised message contradicted their beliefs (the message that the claimant wanted on the cake was to support gay marriages). The claimant argued that the bakers discriminated against them on the grounds of sexual orientation. The Supreme Court held that the bakers did not discriminate against the claimant on the grounds of sexual orientation; this is because the bakers only refused to supply the message on the cake, and they did not refuse to sell the cake to the claimant. If the bakers refused to sell a cake to the claimant for being gay, then this would have been discrimination. The Supreme Court acknowledged that nobody should be forced to side with a view that they oppose as this would infringe on their freedom of expression.
2) Bellman v Northampton Recruitment – Can an assault between colleagues at an unplanned work Christmas after party result in the employer being vicariously liable for the actions of an employee? The Court of Appeal (COA) held the employer vicariously liable.
Bellman v Northampton Recruitment - Vicarious liability is where the employer is held liable for the actions of its employees where such an act has occurred ‘during the course of employment’. During a work Christmas ‘after party’ (which was unplanned), the managing director (MD) was seen to be asserting his power by ‘summoning’ his employees. Shortly after, a fight broke out between the MD and an employee which resulted in the MD fracturing the employees’ skull and causing other internal injuries. The COA held the employer to be vicariously liable based on the following:
a) the fight broke out due to a ‘work related issue’ (and not a personal one);
b) the ‘after party’ was paid for by the company; and
c) the MD was asserting his power (acting in his role as MD).
Therefore the COA found a sufficient link between the actions of the MD (still acting in his role) and the environment (drinks and transport still being paid for by the company) to hold the employer vicariously liable for the actions of the MD.
3) Evans V Xactly C Limited – Can ‘office banter’ amount to harassment? The Employment Appeal Tribunal (EAT) ruled that ‘office banter’ does not amount to harassment where the claimant has also participated in similar behaviour.
In Evans V Xactly C Limited the claimant was called a “fat ginger pikey” in the workplace; the claimant did not make a complaint or react to this comment at the time. However, later on, he claimed that this comment amounted to harassment (particularly because the claimant was said to have close ties with the travelling community and suffered from diabetes). The Tribunal were aware that this could amount to harassment, although on the facts of this case, comments like this were often used between colleagues without any fuss; there was a culture of banter in the workplace and the claimant had often participated in banter without any issues. The EAT ruled, given the context and circumstances, the comment did not amount to harassment.
4) Kreuziger v Land Berlin - Employers who have a ‘take it or leave it’ holiday policy should make employees and workers’ holiday entitlement ‘clear and transparent’. If employers fail to do this, any untaken holiday could be paid back to the employee and worker.
In Kreuziger v Land Berlin a worker had accrued holiday but did not take this prior to the termination of his employment. After termination, he requested an allowance in lieu of the leave that he had not taken. However, the company had a ‘take it or lose it’ policy in place. The European Court of Justice ruled national law cannot provide for an automatic loss of accrued untaken holiday unless they can show that employers have ‘transparently and specifically’ informed the staff of their holiday entitlement and given them sufficient notice to take such holiday entitlement. Therefore employers should ensure that holiday entitlement is clearly communicated to staff.
5) In Royal Mencap Society v Tomlinson-Blake the Court of Appeal (“COA”) overturned the Employment Tribunals original decision removing National Minimum Wage (“NMW”) protections from care and support workers on sleep-in shifts.
The company employed the claimant as a care support worker to work within the 24 hour care and support team for people with severe disabilities at their homes. During sleep-in shifts, the claimant remained in the home of the person that she was caring for to be on hand to deal with any emergencies if they were to arise. If an emergency arose then the claimant would receive an extra hour of pay. The claimant was unhappy with this arrangement so she brought a claim in the employment tribunal to receive NMW for the full duration of the sleep-in shifts. The employment tribunal found in the claimants favour. However, the COA overturned this decision and decided that employees who ‘sleep-in’ at their workplace are not entitled to receive NMW for periods when they are asleep. This was due to the fact that time spent sleeping is characterised as time when an employee is ‘available for work’ rather than time when they are actually working.