to project a certain image. Ms Eweida's cross was discreet, and there was no evidence that the wearing of items such as turbans and hijabs, by other employees, had any negative impact on British Airways' brand. In the circumstances, the State had breached its obligations under Article 9 in failing to protect Ms Eweida's rights. In respect of Ms Chaplin, the Court held that the importance of her being permitted to manifest her religion must weigh heavily in the balance. However, the reason for asking her to remove the cross, the protection of health and safety on a hospital ward, was more important. The interference was necessary in a democratic society and there was no breach of her Article 9 rights. In respect of Ms Ladele and Mr McFarlane, the Court has previously held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification. The Court commented that national authorities have a wide margin of appreciation when it comes to striking a balance between competing Convention rights. The margin of appreciation was not exceeded by either case. The judgment highlights that the justification of indirect discrimination will continue to be a highly fact specific exercise, although employers will now be required in many cases to accommodate reasonable requests in respect of uniform.
EMPLOYMENT STATUS - DEGREE OF CONTROL
24 January 2013
The Employment Appeal Tribunal (EAT) has recently considered the subject of control in the case White & Todd v Troutbeck SA.
Daniel Barnett’s Employment law bulletin recently reviewed the case and asked, Does an employer have to exercise actual day-to-day control over an employee for there to be an employment relationship?
No, says the EAT, in White & Todd v Troutbeck SA , as the contractual right to control is sufficient.
The Claimants were caretakers/managers of a small estate in Surrey on behalf of the 'absentee owners', who visited once or twice a year. They were engaged under an agreement that set out various duties and responsibilities for the farm and grounds. There were no fixed hours, but several references in the agreement to 'employment.' Overturning the employment tribunal's decision that the pair were not employees, HHJ Richardson held that the fact that the owners had divested themselves of day-to-day control was not conclusive. The test from Ready Mix Concrete remains the 'classic description of a contract of employment'. It is a multi-factorial test, rather than a control test. The key question is whether there is a contractual right of control. All aspects of control are relevant, and many employees decide how their work is done. The starting point is the express terms of the contract and (unlike Autoclenz v Belcher ), no party had argued that the agreement did not reflect the true relationship.
AGE DISCRIMINATION
7 February 2013
The Employment Appeals Tribunal (EAT) has recently ruled on the question of unlawful direct discrimination.
CIPP Policy News Journal
12/04/2013, Page 77 of 362
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