Case Reports

A blanket ban on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief, but might amount to indirect discrimination, subject to the defence of justification.

An employment tribunal was entitled to reject a claim of indirect discrimination on the grounds of religion or belief on the basis that the claimant’s asserted need to take five consecutive weeks’ leave in order to attend a number of religious festivals was not genuine.

An employer is not bound in law to accept a request for flexible working, but what the employer must do, among other things, is base any refusal of such a request on correct facts.

1. Long-term stress on its own did not amount to a relevant disability under Equality Act 2010.

2. In making a costs order, the tribunal is not required to take account of the paying party’s ability to pay. It has an open discretion whether to do so; but, if it is asked to take account of ability to pay and declines to do so, it should explain its reasons for so doing.

In considering whether the conduct of an employee was within the course of the employment for the purposes of determining whether there was vicarious liability on the part of an employer for the conduct of an employee, a line could be drawn between an organised work party and a subsequent impromptu drinking session.

A worker who is prevented from taking scheduled annual leave because he or she is on long-term sick leave is entitled to elect to take the annual leave at a different time and, if necessary, carry it forward into a subsequent holiday year.

There was no libel involved in emailing customers stating that an employee had been dismissed for gross misconduct and making reference to the conduct concerned where the employer was able to prove the substantial truth of the imputation the emails conveyed.

Employees who are paid contractual results-based commission must have lost commission taken into account in the calculation of their holiday pay. The Court of Appeal followed the earlier decisions of the Employment Appeal Tribunal (EAT) in holding that the Working Time Regulations 1998 (WTR 1998) can be interpreted in a way which is compatible with the Working Time Directive 2003.

There was no requirement for an appeals procedure expressly to give the right to reinstate, in order a successful appeal against dismissal to have the effect that there was no longer a live dismissal so that the employment tribunal did not have jurisdiction to consider a complaint of unfair dismissal.

The duty to make reasonable adjustments under s.20 of the Equality Act 2010 did not entitle an employer to impose an adjustment on an employee without the employee’s consent, but could extend to protecting pay where an adjustment was made of moving the employee to a role with a lower rate of pay than the employee’s contractual rate of pay.