The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal
personally did work, a lack of mutuality of obligation between assignments was not relevant, and following the EAT decision in Windle v SoS for Justice (a case also involving court interpreters).
After the employment tribunal's judgment, the Court of Appeal overturned the EAT's decision in Windle , noting that a lack of mutuality of obligation between assignments would be relevant to employment status under the broad Equality Act test. Therefore the appeal succeeded, the case being remitted to a new employment tribunal.
The EAT noted that there was no reason for an employment tribunal to regard a decision on essentially the same facts in another employment tribunal as 'persuasive' or to be followed, unlike the situation in the EAT.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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TUPE: Service Provision Change - 'Principal Purpose' Test 14 March 2017
When assessing the 'principal purpose'• of an organised grouping of employees under TUPE, is an employment tribunal entitled to look at the actual activities being carried out?
Yes, held the EAT in Tees Esk & Wear Valleys NHS v Harland.
In 2005, a group of workers were organised into a team to provide care for an individual, CE. By 2015, when the contract passed to the second Respondent, the group of workers still existed. However, as CE's care needs had reduced, the team was predominantly caring for other service users.
The employment tribunal found that the 'principal purpose'• of the group was no longer the provision of care to CE, therefore there was no service provision change. The NHS Trust appealed.
The EAT dismissed the appeal on this point, holding that the 'principal purpose'• should be determined by looking at the dominant purpose of the organised grouping at the relevant time. The employment tribunal was entitled to look at the actual activities being carried out immediately before the service provision change, as well as the intention behind the organisation of the grouping, although neither were necessarily determinative. In this case, care for CE had become a subsidiary purpose, rather than a dominant one.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Religious discrimination in the workplace 15 March 2017
The CJEU has held that the banning of a headscarf at work does not constitute direct discrimination.
In February 2003, Samira Achbita, a Muslim, was employed as a receptionist by G4S, a private undertaking which provides, among other things, reception services for customers in both the public and private sectors. At the time of Ms Achbita’s recruitment there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. In May 2006, after a period of absence from work due to sickness, Ms Achbita notified her employer that she would be returning to work and that she would in future be wearing the Islamic headscarf. Later in May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force in June 2006. These provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such
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