Policy News Journal - 2016-17

The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal

Religious festivals: request for five weeks’ holiday 13 February 2017

A case has been dismissed by the EAT concluding that there was no discrimination over the rejection of a request for five weeks' holiday to attend religious festivals as part of religion or belief.

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision in Gareddu v London Underground Ltd that the claimant's assertion that his beliefs required him to take a block of five weeks' leave to attend religious festivals was not genuine. The Claimant's case before the Tribunal was that it is part of his religious belief that in or around the month of August he attends and participates with his family in ancient religious festivals held in the region of Sardinia where he was born. He challenged the refusal to permit him to have more than 15 consecutive days of annual leave in August 2015 and/or to permit him to work during part of this holiday at home as unlawful indirect religious discrimination contrary to section 19 of the Equality Act 2010. The ET dismissed his claim on the basis that the "asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September" was not made in good faith. Whilst both the Respondent and the Tribunal accepted that participation in religious festivals might constitute a manifestation of religious belief, it was the assertion of a specific five-week period in which to attend a series of religious festivals that resulted in the Tribunal's finding. The Claimant appealed. The EAT dismissed the appeal. While it was common ground (and accepted by the Employment Tribunal) that attendance at festivals in Sardinia could be a genuine manifestation of religion or religious belief, there was no error of principle or perversity in the Employment Tribunal's conclusion that the Claimant was not genuine in asserting that he required a five week period over the summer off work, in order to attend religious festivals with his family, as a manifestation of his religion or belief.

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Employment Status of Plimlico Plumbers 15 February 2017

The Court of Appeal upheld the decision that the plumbers employed by Pimlico plumbers are workers, not self- employed contractors.

The Court of Appeal has handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith .

Dismissing the appeal by Pimlico Plumbers from the EAT decision , the Court of Appeal upheld the decision that the plumbers employed by Pimlico plumbers are workers, not self-employed contractors. As the Master of the Rolls says: "This case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that... there is a legal relationship of... independent contractor rather than employer and employee or worker." It is a fact sensitive case, and the 33 page judgment considers - in detail - the evidence and contractual documentation that Mr Smith worked under when at Pimlico Plumbers. Indeed, Underhill LJ comments that he has "not found the case entirely straightforward". But it is nevertheless likely to be a leading case on employment status in future years.

Importantly, the Court of Appeal gives a clear summary of the principles for the 'personal service' aspect of the employment status tests at paragraph 84.

As a postscript, the Court of Appeal was critical of the approach of written-only submissions in complex cases (paras 119 and 147) and emphasised the importance of oral submissions.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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