Here’s what’s in this edition of ByteSize Employment:
- Why not baking a “Support Gay Marriage” cake for customers could be sexual orientation discrimination
- Christian nursery worker, dismissed for anti-gay comments, wins religious discrimination case
- Zero-hour contract exclusivity clauses now unenforceable
- Are you paying staff the national minimum wage? If not, watch out: new £20,000 penalty
A Northern Irish court (Lee v Ashers Baking Co) reconfirmed that equality legislation can reach beyond employment law to goods and services law.
The court found unlawful sexual orientation discrimination by a bakery which treated a gay customer less favourably than others in refusing to bake a “Support Gay Marriage” cake.
The case, being appealed, highlights the conflict between the right not to be discriminated against on grounds of sexual orientation, under national equality legislation, and the right to freedom of religion, a right from the European Convention of Human Rights, which is implemented in both England and Northern Ireland by the Human Rights Act 1998.
England’s goods and services sector was similarly affected, with the finding (Bull v Hall) that hotel owners who refused a double room to gay civil partners directly discriminated on grounds of sexual orientation.
Both employers and retailers should expect much closer scrutiny of their decision-making and should consider taking legal advice, should a conflict arise.
An English employment tribunal (Mbuyi v Newpark Childcare) recently weighed up religious beliefs against employers’ policies to promote gay-friendly workplaces.
It held that a Christian employee was discriminated against on grounds of religion when she was dismissed for making negative comments about a colleague’s homosexuality.
Her employer, the nursery, had made procedural errors in the disciplinary process and it didn’t give a reasonable explanation for why it treated her the way it did. The nursery had treated her based on stereotypical assumptions on Evangelical Christian beliefs.
Whilst this case could be seen as a triumph for the right to express religious views at work, it doesn’t mean that employees can never be fairly dismissed for displaying religious beliefs, if they manifest those beliefs inappropriately.
Employers should protect themselves by investigating incidents sensitively and carefully, before drawing any conclusions.
Exclusivity clauses in zero-hour contracts (which prevent workers from working or performing services for another employer, or which stop them from doing so without their employers’ consent) are now unenforceable against workers, under the Small Business, Enterprise and Employment Act 2015 (the ‘Act’).
The Act inserts new provisions into the Employment Rights Act 1996 to give effect to this new law and gives the government wide powers to make further law on zero hour contract in future.
In a government consultation on zero hour contracts, there was support for a new ‘protection from detriment’ right for zero-hour contract workers, who are subjected to a detriment because of also working for another business, which could be on the horizon.
This area of law is likely to continue developing, especially given that the current law does not contain any anti-avoidance measures.
The Act also amends the current national minimum wage legislation to allow a maximum penalty for non-payment of the national minimum wage to £20,000 in respect of ‘each’ underpaid worker.
This means there could now be crippling sums at stake if you do your sums wrong. And when it comes to deciding who is a ‘worker’ (what about agency workers, apprentices, placement students, volunteers?) there can be considerable confusion in deciding who should be paid what.
If you are in any doubt, we can advise you on what category your workers fall into and how much you should be paying them per hour.
Posted on July 6, 2015