Tuesday 21 October 2014

Fashion Victim

I was interested to receive an e-mail from ACAS advising that new guidance had been published on dress codes, tattoos and piercings in the workplace.  It made me reflect on my own attire for our charity dress down days at the end of the month – how much could I really get away with? Flip-flops and shorts in summer? Woolly hat indoors in the winter? Could I now get that tattoo I wanted when I was a teenager? 

So I read the guidance hoping there’d be some clear instructions to help me tailor my wardrobe to suit - but I was disappointed.

There are some key principles employers must adhere to but no detailed rules. It is for the employer to set the standards that will apply. 

ACAS says employers must - 
  • avoid unlawful discrimination in relation to any dress code,
  • consider health and safety,
  • apply the dress codes to men and women equally and
  • make reasonable adjustments for disabled people when dress codes are in place.
These are all very sensible suggestions. But I still wasn’t sure what I could and couldn’t wear.

A number of Tribunal cases have given more specific examples. In Smith –v- Safeway Plc (1996) a male employee of Safeway on the deli counter was dismissed because the length of his pony tail fell below his deli hat. This contravened his employer’s rule, which required employees to dress in a smart and conventional way. Mr Smith thought it was unfair and argued sex discrimination but he failed. The Court of Appeal decided that since the dress code was applied equally to persons of both sexes (i.e. both sexes were required to dress in a conventional way) it was not discriminatory.

So employers might be allowed to apply different standards to female and male employees if the dress code enforces a common principle.  However, it isn’t always easy to get the balance right.  In DWP v Thompson the Claimant received a warning for refusing to wear a collar and tie, when female employees were not required to wear them. The Tribunal confirmed the proper approach was whether the level of smartness required by the employer could only be achieved by requiring men to wear a collar and tie. If it could be achieved by other means the inflexibility might amount to sex discrimination.

Azmi –v- Kirklees Metropolitan Council reminds us of the potential for religious discrimination issues to arise. In this case a Muslim woman was not allowed to wear a veil at work when teaching (but was allowed to wear it at other times).  When she refused to comply with the request, the school suspended her and she pursued claims of discrimination on grounds of her religion and belief. Ms Azmi’s claims failed - the rights of employees to manifest their religion at work are subject to their being able to perform the role they are employed to carry out. The employer in this case had evidence of a detrimental impact on teaching and their request was proportionate.  

ACAS emphasises that any restriction on clothing or jewellery that manifests religious faith must be based on a legitimate business or safety requirement. Employees might be allowed to demonstrate their religious faith through their dress by wearing an unobtrusive cross symbol to denote religious faith (clear reference to Eweida –v- British Airways Plc). However, where health and safety is concerned, it might lead to a different outcome (for example in the Chaplin case where a risk of infection and patients grabbing a necklace outweighed the right of this nurse to manifest her religion by wearing a necklace with a cross symbol). Tackling these thorny issues of religious and sex discrimination is not really made any easier by the ACAS guidance.  

Some cases might be straightforward. One can imagine how necklaces or dangly body piercings in some industries (e.g. manufacturing) might not be allowed. Nobody wants to find an earring in their pasta salad and no worker would want to risk the danger of their necklace getting caught in a conveyor belt. Wearing flip flops on a construction site is just silly. What the ACAS guidance does at least achieve is prompting employers to think about it. Employees should know why the employer believes it is dangerous or unhygienic or unprofessional to wear certain jewellery or items of clothing and this can be written in a policy. ACAS even suggests employees get involved in helping the employer create such policies. But once the employer thinks about it, will it be put off by the complications? Once it is in writing, etched like a tattoo permanently in their policy booklet, the employer might lose the element of discretion which can create a more relaxed and pleasant working environment.  

But there is no doubt that an employer’s image is important – and when it comes to tattoos, it’s all about image. Footballers, film stars, music stars – everyone seems to have tattoos. Apparently one in five British people are thought to have tattoos and they’re most popular in 30 to 39 year olds. ACAS guidance suggests employers need a ‘sound business reason’ for asking that tattoos be covered up. Given their popularity and prominence are they really a problem? Do they really give the impression a person is less professional or less competent than the next or does it show artistic flare and creativity? It’s tricky and the guidance from ACAS is brief. Ultimately it is for the employer to decide on its tattoo policy and I expect it would in most cases be difficult for an employee to take action if the same policy is applied to men and women.

Dress codes aren’t easy to get right – they need to be tailored to suit the business. But I think I’ll be happy to leave my shorts and flip flops for the beach, my woolly hat for winter walks and tattoos for the celebs. 

Daniel Kindell - Associate Solicitor
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.




Thursday 16 October 2014

Should Overtime Be Accounted For In My Holiday Pay?

In anticipation of the Employment Appeal Tribunal’s (“EAT”) imminent decision in the holiday pay cases of Bear Scotland Limited v Fulton & Baxter, Hertel (UK) Limited v Wood & Others and Amec Group v Law & Others, regarding whether voluntary overtime must be taken into account when calculating holiday pay, we thought it appropriate to provide an overview of the legal issues in the case. To assist we will first look at the way holiday pay is currently calculated.

Under the Working Time Regulations 1998 (“The Regulations”) workers are currently entitled to a minimum of 5.6 weeks’ paid holiday each year (inclusive of bank holidays). The first 4 weeks of this are required by the Working Time Directive (“The Directive”). The additional 1.6 weeks are solely provided under the Regulations. The way employers calculate holiday pay varies; however, it is widespread practice not to include voluntary overtime in such calculations. The result is that workers who regularly work voluntary overtime are placed at a disadvantage when taking holiday because they receive less pay than they would if they were not on holiday (and working voluntary overtime). Following recent decisions by the European Court of Justice in Williams and others v British Airways and Lock v British Gas Trading, the question has arisen as to whether such practice is in line with the intentions of current legislation.

In the Bear Scotland v Futon & Baxter appeal, the Tribunal ruled that voluntary overtime must be included in the calculation of holiday pay for the entire 5.6 weeks of holiday provided for under the Regulations. By contrast, in the Hertel (UK) Limited v Wood & Others and Amec Group v Law & Others appeals, the Tribunal ruled that voluntary overtime should be included in holiday pay calculations, but only for the 4 weeks required by the Directive – not the 5.6 weeks provided for under the Regulations.

We would hope that the EAT reject all of the appeals and rule that voluntary overtime must be included in holiday pay calculations. Further, we would hope that the EAT confirm that it should be included for the full 5.6 weeks provided for under the Regulations. In our opinion, any other decision would clearly act as a disincentive to taking holiday for those workers who regularly work voluntary overtime. It is the writer’s opinion that if the EAT confirms that overtime is to be included in holiday pay, it is more likely that it will just be for the 4 weeks required by the directive.

If the EAT confirms that voluntary overtime must be included in the calculation of holiday pay (either for 4 weeks of 5.6 weeks) we would envisage many claims, for unlawful deductions from wages, being commenced in the Employment Tribunals by workers who have not had overtime accounted for in their holiday pay.

If you regularly work overtime (or receive regular pay from your employer that is not part of your ‘basic pay’ e.g. commission, bonuses, shift allowances etc.) and such pay is not accounted for in your holiday pay we would advise you to contact our Employment Right’s Department to seek advice. There are short time limits within which these claims can be commenced so do not delay in contacting us – if you do, you may lose your opportunity. All enquiries should be directed to holiday@morrishsolicitors.com

Tony Ridley
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.