Employment & Immigration Legal Updates 9/11/2009

Climate change as a philosophical belief

The EAT has decided that environmental beliefs can amount to a philosophical belief capable of protection under discrimination legislation.

Professional support lawyer Elizabeth Stevens comments:

The employee in this case, Mr Nicholson, claimed that his dismissal amounted to an act of discrimination under the Employment Equality (Religion and Belief) Regulations 2003, as he alleged it resulted from his beliefs in climate change. His former employer, Grainger plc, claimed the dismissal was fair by reason of redundancy.

As a preliminary issue, an employment tribunal had to determine whether, in principle, a belief in climate change was a "philosophical belief" within the meaning of the Regulations. The tribunal decided that such a belief was protected under the Regulations, thereby allowing his claim to proceed.

Grainger plc appealed this decision to the Employment Appeal Tribunal (EAT), which has now handed down its judgment. The EAT agreed with the tribunal, ruling that such a belief was capable of being protected under the Regulations although the judgment makes it clear that Mr Nicholson still has to prove that he held a genuine belief (rather than just an opinion or viewpoint) and that his dismissal was on the grounds of that belief. The case will now go on to be decided at a full hearing.

Comment

In previous cases involving an individual's religious (rather than philosophical) beliefs, employees have struggled to demonstrate that their treatment has been on the grounds of holding a particular belief, rather than any manifestation of that belief (such as the wearing of a cross by a Christian or a Registrar's refusal to conduct civil partnership ceremonies).

As a result of this case, and provided there is no successful appeal, individuals who hold a genuine belief in climate change are protected from discrimination in the workplace. Such protection would extend, for example, to protection from being harassed by other employees on the basis of those beliefs. It does not mean that an individual should necessarily be allowed to carry out their job in accordance with their beliefs, or should be allowed to impose such beliefs on other employees, for example by putting pressure on them to recycle, unless this happened to form part of their duties.

Click here for a copy of the decision.

Implications for employers of the Royal Mail strike

The ongoing industrial dispute at Royal Mail could have serious implications for employers, as a result of delays in the postal system.

Steeles Law head of employment Oliver Brabbins comments:

The recent series of strikes by postal workers have resulted in a huge backlog of mail, estimated by the Royal Mail at 35 million items of post. This could have important consequences for employers, who may be corresponding with employees using their home address.

Termination date

By way of example, in a recent decision (Gisda Cif v Barratt) the Court of Appeal held that for the purposes of establishing an employee's termination date, the relevant date was the date the employee read her letter of termination. The letter had been delivered four days previously, when the employee was away. Her subsequent claim for unfair dismissal was filed within three months of the date she read the letter, but her claim would have been out of time if the Court had decided her termination date was the date the letter was received.

If an employee's termination letter is delayed in the post, this will make it difficult to determine exactly when the dismissal took place which is important for establishing the individual's length of service and also the relevant time limit for issuing a tribunal claim.

Employers should ensure that whenever possible, a decision to terminate an individual's employment is communicated in person and then confirmed in writing, to ensure there is no confusion over the termination date. Similarly, if an employer is corresponding with an employee who is absent, perhaps on maternity leave or long-term sick leave, it would be prudent to ensure that any time-critical correspondence is communicated via an alternative route, such as email.

Tribunal time limits

Employers may also be faced with problems if correspondence from the employment tribunals has been delayed in the post. An employer against whom a tribunal claim has been filed will be informed of the claim and provided with a copy in the post. If this has been delayed, it could mean the employer is left with very little time in which to file a response.

A response to a tribunal claim (ET3) should be filed within 28 days of the date the claim is sent to the employer, not the date it is received. A respondent to a claim can apply to have this time limit extended, and if receipt of a claim has been unduly delayed as a result of the strike it is likely that a tribunal will grant an extension of time. However, it is important to make any application before the original time limit expires. A failure to do so is likely to result in the tribunal issuing a default judgment in favour of the claimant, and the respondent may be prevented from defending the claim.

An employer might be alerted to the existence of a tribunal claim if, for example, it is contacted by an Acas conciliator. In these circumstances the employer should contact the employment tribunal office as a matter of urgency in order to obtain details of the claim. In addition, it would be prudent for employers to ensure all correspondence is accurately date stamped on receipt, in case it is necessary to provide evidence of delayed receipt.

Payments in lieu of holiday

In a recent case, an employee was allowed to claim payment in lieu for untaken holiday for the full period of her employment, not just the final year.

Employment associate Alison Parker comments:

The employee in this case was dismissed after a period of seven and a half years. Her claim for unfair dismissal succeeded and she was awarded 131 days' pay in lieu of her holiday entitlement by an employment tribunal. The tribunal held that she was entitled to pay in lieu of all her accrued but untaken holiday, pursuant to an oral term of her contract.

On appeal to the Employment Appeal Tribunal, the employer argued that since the Working Time Regulations 1998 do not permit the carry over of holiday, the employee should only be entitled to payment in lieu of her final year's holiday plus any contractual entitlement over and above the statutory entitlement in respect of previous years.

The EAT disagreed and upheld the tribunal's decision to award the full amount of holiday pay. The EAT held that since the employee's contractual entitlement to holiday was more favourable than that under the WTR, she was not prevented from being entitled to full payment in lieu of her untaken holiday. The reason for this was that her claim was based on her contractual holiday entitlement, and was a claim for breach of contract rather than a claim under the WTR.

Comment

At first sight this may seem a surprising decision, in view of the limitations under the WTR relating to the payment in lieu of holiday. However, the employee in this case was employed under an express (oral) term that all untaken holiday would be paid on termination.

It is important for employers to ensure that the position on payment in lieu of an employee's untaken holiday is set out clearly in the contract of employment. The best way employers can achieve this is by producing a written contract of employment which expressly states that any right to payment in lieu of untaken holiday is limited to the final year of employment. In addition it would be prudent to restrict the amount of holiday that can be carried forward from one holiday year to the next.

Click here for a copy of the judgment.

These articles copyright © 2009 Steeles Law llp. All rights reserved.