HR & Employment Law
A client complained and asked that there should be “no veil next time”. She was subsequently asked not to wear her headscarf when visiting clients. She refused to do so and was dismissed. Originally her claim was dismissed, but the case was
referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole’s requirement that an employee remove her hijab when in contact with clients was a “genuine and determining occupational requirement” under Article 4(1) of the Equal Treatment Directive. The CJEU decided that her dismissal for wearing a
hijab when in contact with customers, in defiance of a clear instruction, did amount to unlawful direct discrimination on the grounds of religion or belief, overturning the original decision. Some exceptions to this finding were envisaged where, for example, there were health and safety reasons.
Employing women with childcare responsibilities and Indirect Sexual Discrimination In the case of XC Trains Ltd v CD & Anor (July 2016) the Employment Appeal Tribunal (EAT) held that the tribunal had to weigh up the legitimate business aims of the employer against the alleged indirect sexual discrimination of the employee, who complained that the requirements of her employer indirectly discriminated against her. The employee was a single mother who had three
Protected conversations may not offer much protection
children under the age of five and she had various challenges in arranging childcare. As she was required to work over 50 per cent of rosters and on Saturdays, it was found that this disadvantaged women as a group. The original decision was in favour of the employee
but on appeal the EAT considered whether the requirements of the employer were a proportionate means of achieving a legitimate aim. It found that the
Are working women indrectly discriminated against?
law had been misapplied against the employer by failing to balance the discriminatory effect of the working conditions against the legitimate aims of XC Trains to run a train service and fulfil their contractual obligations under the franchise and the rights and needs of the workforce. This appeal was allowed and this case shows the EAT
is keen to give as much priority to the employer’s business needs as it is to the employee’s needs, so long as the employer can show business justifications.
Tribunal balancing act These cases show how the tribunals have a fine balancing act to carry out between the competing needs of employers and employees. With a “hard” Brexit now seeming likely and freedom from the European Courts eventually becoming a reality, it may be that cases such as these may start to learn more in favour of the employers’ needs. However, all cases are fact sensitive, showing the need to take legal advice before costly mistakes are made.
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November 2016 CHAMBERLINK 45
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