Policy News Journal - 2016-17

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

beliefs’. Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian courts.

The Court of Justice queried the interpretation of the EU directive on equal treatment in employment and occupation. In the judgment, it was noted first of all that, under the directive, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on the grounds, among other things, of religion. Although the directive does not include a definition of ‘religion’, the EU legislature referred to the European Convention on Human Rights (ECHR) and to the constitutional traditions common to the Member States, which have been reaffirmed in the Charter of Fundamental Rights of the European Union. Therefore, the concept of religion must be interpreted as covering both the fact of having religious belief and the freedom of persons to manifest that belief in public. The Court of Justice found that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally. It is not evident from the material in the file available to the Court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.

Full details of the case Achbita v G4S Secure Solutions are not yet available; however the press release provided by the Court of Justice of the European Union (CJEU) provides further information.

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Long-Term Absence Dismissals 20 March 2017

In a dismissal for long-term sickness absence, is the test for discrimination arising from disability different from the test for unfair dismissal?

Not really, held the Court of Appeal in O'Brien v Bolton St Catherine's Academy .

At the time of her dismissal, the Claimant had been absent from work for more than a year and there was no certainty as to when she would return. As the Court of Appeal acknowledged, the Claimant's case that her dismissal could not be justified at that stage was very weak, and any finding that such a dismissal was unfair would require considerable scrutiny. But, at her appeal hearing, the Claimant produced evidence that she was fit to return to work imminently and, under these unusual circumstances, the failure to take this new evidence into account rendered the dismissal unfair. This finding was upheld by the Court of Appeal, noting that it was "near the borderline". The Court of Appeal rejected a submission that the employment tribunal had conflated the tests for unfair dismissal and discrimination arising from disability. Despite differences in the statutory wording and the burden of proof, they should rarely lead to different results in the context of long-term sickness. A failure to consider them separately will not be an error of law.

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

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Timing a notice of termination 23 March 2017

When notice of termination should take effect was considered in a recent court of appeal.

Where an employment contract is silent on when notice is deemed to be given, when does notice of termination take effect?


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