International Labor and Employment Law

UK Gender Pay Gap Reporting

We wrote about the Draft Gender Pay Gap Regulations in the April 2016 edition of A Month in UK Employment Law. In December 2016, the UK Government published a revised version of these Regulations which are expected to come into force on 6 April 2017.

As a reminder, the Regulations require private sector employers in the UK with at least 250 employees to publish certain information about the differences in pay between men and women. It is anticipated that 7,960 employers and around 11 million employees will be affected (34% of the total UK workforce).

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The right to disconnect: a new right for French employees?

A new law, called El Khomri law, passed on August 8th, 2016 in France providing a right to disconnect for employees.

Such right is entered into force on January 1st, 2017

According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees. Continue Reading

High Court Decision Serves as a Cautionary Tale for Office Holiday Parties

The High Court ruled on December 1, 2016 that Northampton Recruitment Limited was not liable when a manager punched an employee twice in the head after a Christmas party. While the Company was not held liable, the case is a cautionary tale for companies during the holiday season.

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UK Tribunal Allows Expatriate to Bring Claims in the UK

In Jeffrey v. The British Council 2016, the Employment Appeal Tribunal (“EAT”) ruled that an employee who had an “exceptional degree of connection” with the United Kingdom could bring claims in the UK even though he had been working outside of the UK for over 20 years. This provides an important exception to the general rule that employees have to be working in the UK to bring employment claims there.

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Record fine handed to TalkTalk in data protection breach in the UK

As previously reported on our Privacy Blog, TalkTalk, a major UK telecoms company, has been fined  a record breaking £400,000 for a data breach after they were hacked.  This fine, given by the ICO (the UK’s data protection authority), followed an in-depth investigation into an attack by hackers on TalkTalk’s systems where hackers obtained the details of 156,959 customers, including their names, addresses, dates of birth, phone numbers and email addresses. The maximum fine the ICO can require companies to pay is £500,000. Read the full post on our Privacy Law Blog.

The War on Modern Slavery Continues

On July 30, 2016, newly-elected British Prime Minister, Theresa May, wrote an article detailing how her government would lead the charge in combatting modern slavery. As a major proponent of the UK Modern Slavery Act (and one who played a key role in the Act’s passage as former Home Secretary), May pledged to make it her personal mission to help eradicate the “barbaric evil” of slavery and human trafficking, calling it the “great human rights issue of our time.”  In doing so, she announced the allocation of £33 million from her aid budget to create a 5-year International Modern Slavery Fund focused on high-risk countries.

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EU Advocate General Holds that Certain Forms of Indirect Religious Discrimination Could be Justified

On May 31, 2016, the Advocate General (“AG”) of the European Court of Justice issued its opinion in a case relating to a Muslim employee wearing a headscarf at work. In the case, Samira Achbita v. G4S Secure Solutions NV, Case C-157/15, the AG stated that a neutral policy prohibiting employees from wearing visible religious symbols was not direct discrimination under Article 2(2)(a) of Directive 2000/78 EC, the EU Directive that addresses discrimination in the workplace. Furthermore, the AG indicated that such a policy may not constitute indirect discrimination either, and therefore not be illegal, provided it is based on a legitimate and proportional policy requiring religious or ideological neutrality in the workplace. This decision, while not binding, stands in stark contrast to the law on the subject in the United States, where just in 2015 the Supreme Court held that failing to hire an applicant because she wore a headscarf constituted discrimination.

In Achbita v. G4S, the plaintiff, Samira Achbita, was an employee of a global security firm. Achbita is Muslim, and for over three years followed a company policy that banned wearing any visible religious, political or philosophical symbols. In April 2006, she announced to the company that she intended to wear a headscarf during working hours for religious reasons. In June 2006 her employment was terminated for violating company policy. She sued the company in a Belgian labor court for wrongful dismissal on the grounds of direct religious discrimination. After winding its way through the courts, in 2015 the Belgium Court of Cassation (the court of last resort) certified a question to the European Court of Justice to determine whether prohibiting a Muslim employee from wearing a headscarf in the workplace constitutes direct discrimination under EU Directive 2000/78 EC.

The AG held that the policy was not direct religious discrimination because it was not based on stereotypes or prejudices against one religion in particular as compared to other religions. The AG did rule, however, that a policy banning religious garb could constitute indirect religious discrimination if it was not justified by a legitimate aim. Quoting the EU Directive, the AG held that a genuine and determining occupational requirement is a legitimate aim, but that a rule enforcing that requirement must be proportionate. The AG first ruled that a public neutrality rule was a legitimate aim, since it was “essential” to avoid the impression that customers may associate the Company with the religious beliefs expressed by an employee’s dress. The ruling also noted the rule could qualify as an “occupational requirement” in order to maintain “brand image.”

Turning to whether the ban was a proportionate means of achieving the legitimate aim, the AG made two key rulings. First, the AG held that a total ban on religious garb was necessary to achieve a policy of neutrality. Second, the AG determined that the rule would not create an undue prejudice to religious employees, since, “While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.” Therefore, the AG ruled that an employee may be required to have a “measure of restraint” in his or her religious expression at work, and the level of restraint required depends on the circumstances of the case. In particular, the AG indicated that courts should assess the following factors when determining how to strike a “fair balance between the conflicting interest[s]:”

  • The size and conspicuousness of the religious symbol;
  • The nature of the employee’s activity;
  • The context in which the employee must perform his or her activities;
  • The nationality of the company.

Finally, the AG also ruled that employees wearing visible signs of their religious beliefs may be “prejudicial to the rights and freedoms of others” by having an impact on coworkers and customers, and it may affect the Company’s business.

As noted above, this ruling is not binding, and it remains to be seen whether its reasoning is followed by the Court of Justice of the European Union (“CJEU”) and becomes binding precedent for the EU. (A case dealing with the same question, Bougnaoui v. Micropole Univers, C-188/15, currently is pending before the CJEU.) Still, the decision stands in stark contrast to the law in the United States, and multinational employers should be aware of the greater protections afforded religious garb in the United States.

In the United States, under Title VII of the Civil Rights Act of 1964, an employer must accommodate an employee’s religious garb even if it violates a workplace policy, unless the accommodation would be an undue hardship on the company. A major case on the topic, EEOC v. Abercrombie & Fitch Stores, was decided last year. The case turned on whether the failure to hire a Muslim applicant because she wore a headscarf that would have violated a workplace policy constituted religious discrimination under Title VII. (For a full review of the decision, please see here). The Supreme Court, in an 8-1 decision, held that to make out a religious discrimination claim, the plaintiff, “need only show that his need for [a religious] accommodation was a motivating factor in [an] employer’s decision,” even if the employer did not have actual knowledge of the applicant or employee’s religion or need for an accommodation. This stands in stark contrast to the reasoning by the AG in Achbita v. G4S, under which Abercrombie’s workplace policy would likely have been a valid reason to not hire an applicant who would need a religious accommodation.

Employers operating in both the United States and the European Union should be aware of the different standards applied to religious garb and expression in the workplace. We will continue to monitor whether the AG’s opinion is adopted on a wider scale in the European Union, but if this decision stands, it will herald a widening gulf between the conception of religious discrimination, and protections for religious expression in the workplace, between the United States and Europe.

Brexit & The Consequences for UK Employment Law

On 23 June 2016 the people of Britain voted in favour of leaving the European Union – the so-called “Brexit.” The result has created uncertainty and speculation as to the implications of Brexit and what happens next.

Employment law has often been cited as an area where European legislation dominates with the implication that departing the EU will radically change UK employment law. Although exiting the EU will have implications for UK employment law, we consider that much that is in place will remain, not just in the short-term but in the medium and long-term too.

In connection with these concerns, we have outlined the potential impact of Brexit on UK employment law in our Client Alert, available here.

UK Tribunal Defines Some Limits on Employee Privacy Protections and Expands Anti-Discrimination Rights

Employee’s Privacy Rights

European courts continue to grapple with the limits on employee protections under Article 8 of the European Convention of Human Rights.  Article 8 protects a person’s right to respect for their private and family life, and our blog has actively tracked developments on the subject (to review prior rulings, see here, here, and here). The UK’s Employment Appeal Tribunal (EAT) recently further defined the limits of an employee’s expectations of privacy in the workplace when it held that an employee had no reasonable expectation of privacy in emails and photographs from his personal phone that had been passed to the police.

In the case, Garamukanwa v Solent NHS Trust, UKEAT/0245/15/DA, an employee of a hospital, Mr. Garamukanwa, had been in a relationship with a nurse (a fellow employee) that ended. He believed that she left him for another nurse at the hospital, and sent emails to both individuals. An anonymous individual then reported their relationship to a manager, an anonymous Facebook account was set up under the nurse’s name, and anonymous malicious emails were sent to the hospital’s management regarding the nurse. In light of these anonymous actions, the nurse felt threatened, and she complained to the police. Mr. Garamukanwa was suspended pending an investigation, but the police decided to not take any action. In the course of the investigation, however, the police passed all relevant evidence to the employer, including emails and photographs from Mr. Garamukanwa’s personal iPhone. The hospital subsequently terminated his employment.

On appeal, Mr. Garamukanwa argued that his employer could not use the information gathered by the police from his iPhone as a basis for his termination, because it violated his Article 8 rights. The EAT rejected this argument. Importantly, the EAT ruled that the employer’s termination of Mr. Garamukanwa based on the emails and photographs did not even engage Article 8, let alone violate its provisions. Significantly, the EAT held that because the emails were sent to the work addresses of the recipients, dealt with work-related matters, and affected the work of the nurse and other recipients, Mr. Garamukanwa did not have a reasonable expectation of privacy under Article 8. The EAT found it relevant that the company did not rely on any other personal materials from Mr. Garamukanwa outside of what the police provided to them when deciding to terminate him.

This decision provides clarification for companies investigating misconduct. Importantly, even if the employee is using a private device to harass co-workers, if the actions are not solely personal and are connected with work-related matters and the workplace, the employer may be able to rely upon those communications, even if they contain some personal material, as grounds for termination.

Disability Discrimination Protections

Multi-national employers should also be aware of a recent expansion of disability discrimination protections under the UK’s Equality Act 2010. The act prohibits treating an employee unfavorably because of something arising from the employee’s disability unless the unfavorable treatment is a proportionate means of achieving a legitimate purpose. The case, Risby -v- London Borough of Waltham Forest, UKEAT/0318/15/DM, centered on a training course for employees at a location that did not have wheelchair access. One of the employees, who is paraplegic, was extremely upset about the decision, and shouted, swore and made a racist comment toward a junior colleague. The employee was immediately dismissed. The EAT overturned his dismissal, however, holding that he was terminated because of his disability. The EAT reasoned that while his short temper was a personality trait, the employee would not have been angered by the decision to hold the workshop in a venue without wheelchair access if he had not been paraplegic, and therefore his disability was an “effective cause” of his conduct.

This is a broad reading of the Equality Act of 2010, and expands the types of conduct that are protected as ‘caused’ by a disability. Employers operating in both the US and the UK should be particularly aware that this differs markedly from the protections available to US employees under the Americans with Disabilities Act (ADA). While the ADA protects from discrimination against disabilities, the regulations are clear that, “[t]he definition of an impairment…does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” Nonetheless, employers in the UK should be vigilant when terminating an employee with a disability to ensure that the termination is not based on conduct that may be related to a disability.

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