Dress codes

November 25th, 2016

As a subject area, dress codes and appearance at work are becoming more important in the workplace. This is partly due to a number of legal cases being highlighted in the media and uncertainties amongst employers and employees about what dress code is acceptable.
Dress codes are often used in the workplace and there are many reasons why an employer may have one, for example workers may be asked to wear a uniform to communicate a corporate image and ensure that customers can easily identify them. Often an employer will introduce a dress code for health and safety reasons, for example health care workers may not be allowed to wear jewellery for safety reasons when around patients and certain clothing may not be allowed in factories while operating machinery.
An employer’s dress code must not be discriminatory in respect of the protected characteristics in the Equality Act 2010 for age, disability, gender reassignment, religion or belief, sex, or sexual orientation.
Key points
• Employers must avoid unlawful discrimination in any dress code policy.
• Employers may have health and safety reasons for having certain standards.
• Dress codes must apply to both men and women equally, although they may have different requirements.
• Reasonable adjustments must be made for disabled people when dress codes are in place.
A dress code can often be used by employers to ensure workers are safe and dressed appropriately. It should, however, relate to the job and be reasonable in nature, for example workers may be required to tie their hair back or cover it for hygiene reasons if working in a kitchen.
Employers may have a policy that sets out a reasonable standard of dress and appearance for their organisation. Any dress code should be non-discriminatory and should apply to both men and women equally. Standards can be different, for example a policy may state “business dress” for women but may state for men “must wear a tie”.
High Heels and dress codes
Reports in the media have high-lighted the case of a temporary worker who was sent home without pay for refusing to wear high heels at work. Although staff can be dismissed for failing to comply with a dress code, employers should be cautious when operating a dress code in this way. Any dress code should not be stricter, or lead to a detriment, for one gender over the other. It has been reported that wearing high heels can cause physical pain and even harm, and therefore may lead to a successful claim of direct discrimination on grounds of sex.
Employers may adopt a more casual approach to dress during the summer, but this may depend on the type of business. Some employers may require staff to wear business dress all year because of the nature of the work, for example sales representatives who meet with clients will need to maintain a certain standard. Employers may have a “no flip flop” policy as a health and safety precaution, but any restrictions should be clearly set out in the organisation’s policy.
It is good practice when drafting or updating a dress code for an employer to consider the reasoning behind it. Consulting with employees over any proposed dress code may ensure that the code is acceptable to both the organisation and employees. Once agreed it should be communicated to all employees. When setting out a policy employers should take into account employees who may dress in a certain way for religious reasons. However, workers can be required not to wear certain items that could be deemed a safety risk, for example loose clothing may be a hazard if operating machinery.
If employees do not comply with the standards it may result in a disciplinary hearing.
Exceptions to the rule
There may be times when employees wish to support different charities, and they would like to ask for exceptions to the normal dress code rules, for example jeans for jeans day, Christmas jumper day etc. On these occasions people should ask their line manager if it would be ok to take part.
Religious Dress
Some employers may wish to cover issues around religious dress within their policies, however, employers are advised to tread cautiously in this area as they should allow groups or individual employees to wear articles of clothing that manifest their religious faith. Employers will need to justify the reasons for banning such items and should ensure they are not indirectly discriminating against these employees. Any restriction should be connected to a real business or safety requirement. Some recent legal decisions in this area suggest that people should be allowed to demonstrate their religious faith through their dress, for instance by wearing an unobtrusive cross symbol to denote Christianity or wearing a Yarmulke or Kippah (skull cap) as part of the Jewish faith. However, there have been other rulings based on different circumstances that may appear to conflict with this position.
In many cases the display of religious faith may be subtle and fit well with business or corporate dress. Employers are therefore advised to think about the image they want to convey and about how they can work with employees to allow them to manifest their faith in a way that does not conflict with this image, or health and safety requirements, rather than provide a very strict and limiting dress code.
Tattoos and body piercings
Employers may wish to promote a certain image through their workers which they believe reflects the ethos of their organisations. Sometimes this can mean that they ask workers to remove piercings or cover tattoos while at work, especially when dealing with customers. If an employer does decide to adopt a dress code or appearance code it should be written down in a policy which should be communicated to all staff so they understand what standards are expected from them. Some employers have started to reconsider their strict “no tattoo” policies following media reports and online petitions.

The number of employment tribunal claims dropped slightly in the three months to June 2016, continuing the downward trend since tribunal fees were introduced in 2013.
Statistics released recently by the Ministry of Justice showed that there were a total of 4,200 single claims received in this quarter, down 3% on April to June 2015.
During the same period, 11,600 multiple claims were received, up 38% on last year. The number of multiple claims cases they relate to has decreased by 32% to 295, however, indicating that larger groups of complainants are bringing cases against a smaller overall number of employers. The number of cases brought from April to June, at 15,843, shows a considerable drop from the same quarter in 2013, just before fees were introduced, when 76,476 claims were lodged.However, there has been a slight rise in claimants receiving full or partial remission on fees.
Just under two-thirds of cases in the most recent quarter had their full issue fee paid outright (64% of cases), while 27% of cases were awarded either a full or partial issue fee remission. This was up five percentage points compared to the same period in 2015.
The statistics showed a strong rise in the number of outstanding cases for sex and age discrimination, although the Ministry of Justice points out that this figure has been influenced by “a large number of age and sex discrimination claims relating to an employer in the London area”.
A total of 3,772 age discrimination cases and 4,638 sex discrimination cases were received in April to June 2016.
Equal pay claims were also up on the same quarter in 2015 at 3,367, a rise of 72%. However, some of this rise may be attributable to a number of multiple claims against the same employer.
The average “age” of a tribunal case, that is, how long it takes from being lodged to “disposal”, increased for multiple claims, but went down slightly for single claims.
The mean age of a multiple claim case at disposal was 221 weeks, an increase of 33 weeks on the same period in 2015.
For single claims, the mean age of a case ranged from 24 weeks for breach of contract or disputes over wages to 91 weeks for equal pay claims, but the average length was 29 weeks.
Ashok Kanani, an employment law editor at XpertHR, commented: “The latest figures confirm that the number of employment tribunal claims being lodged remains subdued, compared with the levels prior to the introduction of tribunal fees in July 2013.
“It remains to be seen whether or not the Government will take steps to modify the current fees system. Earlier this year, the House of Commons Justice Select Committee commented in its report on courts and tribunal fees, that the employment tribunal fees regime has had a ‘significant adverse impact on access to justice’ and recommended a substantial reduction in employment tribunal fees.”
The Government is carrying out its own review on the impact of the introduction of fees, which is yet to be published.

Following the Brexit vote, below are a few questions and answers on employment rights and Brexit that you might find illuminating:-
• Will it mean an end to statutory holiday and sick pay?
Entitlement to holiday is set out in the Working Time Regulations, which are derived directly from EU law. However, entitlement to holiday is set out in an individual’s contract and cannot just be taken away, even if there is a change of law. Given that the UK opted to increase the amount of holiday from the EU minimum of 20 to 28 days, removing it when we are no longer a member of the EU is highly unlikely. Sick pay is not influenced by Europe.
• Do we have to dismiss EU national employees and do British workers in the EU have to return?
No, to do so would be an unfair dismissal and discriminatory. We are still in Europe and despite what the Leave campaign may have promised there will continue to be free movement until we aren’t, which will probably be years.
• Will the European Court of Human Rights (ECtHR) have any influence on the UK once we exit?
Yes. This is because the UK signed up to the Council of Europe. It is entirely separate from the EU and so all cases involving human rights will still be heard by the ECtHR. However, what will change will be the referral of cases to the European Court of Justice (ECJ), to ask the ECJ if the UK has implemented EU law correctly or interpreted a case properly on matters such as TUPE, collective consultation, discrimination or working time.
• All employment laws originate from the EU
No, there are some that do such as the Working Time Regulations, TUPE (Transfer of Undertakings Protection of Employment) Regulations, the Agency Workers Regulations and rules on collective consultation in redundancy situations. But equally a lot of the laws are ‘home bred’ such as sex and race discrimination, unfair dismissal, minimum wage and many of our family-friendly regulations.
• We will no longer have to abide by laws that originate in the EU
It is important to remember that a law passed by Europe does not have any direct effect on the UK until legislation is passed here. Therefore although the laws may have originated in Europe, laws have already been passed in the UK to reflect them and until these are repealed we must abide by them. There are some laws that are likely to be adjusted such as the compensation for discrimination being capped in the same way as unfair dismissal, making it easier to harmonise terms and conditions after a TUPE transfer. Also, removing the Agency Workers’ Regulations, which give parity for agency workers after 12 weeks. The Working Time Regulations will technically fall away once the primary legislation from which they came (the European Union Act) is repealed. However, it is unlikely that the government will leave the country without a right to paid holiday and rest breaks.
• Will we have lots of new employment legislation to understand and implement once we exit?
Highly unlikely. It is difficult to understand how the government will cope with the amount of negotiation needed to unravel all our trade deals; changing employment laws that work is unlikely to be at the top of its wish list.

When an employer investigated an employee’s emails to a work colleague, was Article 8 of the European Convention on Human Rights (right to privacy) engaged?

No, held the EAT in Garamukanwa v Solent NHS Trust, on the facts of that case.

The Claimant was a clinical manager for the Trust. He formed a personal relationship with a staff nurse, Ms MacLean. The Claimant then suspected that Ms McLean had formed a relationship with a female colleague, Ms Smith. He resented this. Anonymous malicious emails were sent from various fictional email addresses to management. Ms Maclean also became concerned that the Claimant was now harassing and stalking her. The employer investigated, and concluded there were items on the Claimant’s iPhone which implicated him and linked him to the anonymous emails. He was dismissed for gross misconduct. His claim for unfair dismissal failed.

In the course of the employment tribunal proceedings he unsuccessfully argued that the employer had acted in breach of Article 8 of the European Convention by examining matters related purely or essentially to his private life. The employment tribunal rejected this. It considered that Article 8 was not engaged on account that the emails had a potential impact on work, and dealt, at least in part, with work related matters and did not relate to his private life exclusively.

The EAT agreed. It relied on the guidance of Mummery LJ in X v Y on the impact of Convention rights in unfair dismissal cases. The first question always to be asked is whether the circumstances of the dismissal fall within the ambit of one or more articles of the Convention. Unless they do, the rights are not engaged and need not be considered further.

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, here, the emails had impacted on work related matters and the emails were sent to work addresses of the recipients. They distressed colleagues, potentially affecting their work, and the Claimant’s judgement, as a manager, was rightly to be examined.

These were all features that entitled the employment tribunal to conclude that Article 8 was not engaged and therefore not relevant because the Claimant had no reasonable expectation of privacy in respect of such communications. This is another case which confirms that employees do not have a reasonable expectation of privacy in relation to work related emails especially in relation to charges of misconduct.

In Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets plc, the Supreme Court has reconsidered the test for vicarious liability in employment and employment-like relationships. In Cox, it held that vicarious liability can arise in non-employment relationships where the wrongdoer is integrated into the defendant’s operation and the defendant has created the risk of wrongdoing by assigning responsibility to the wrongdoer. In Mohamud, it overturned the Court of Appeal to hold that an employer was vicariously liable for a violent assault by one of its employees on a customer.

In Cox v Ministry of Justice, C was catering manager at HM Prison Swansea, where she worked in the kitchens with the prisoners. She was injured through the negligence of one of the prisoners who accidentally dropped a 25kg sack of rice on her back. She sued the MoJ for personal injury, arguing that it was vicariously liable for the prisoner’s negligence. The county court rejected this argument but the Court of Appeal overturned its decision on appeal, holding that the relationship between the MoJ and the prisoner was sufficiently ‘akin to employment’. The prisoner was so much part of the work, business and organisation of the prison that it was just to make the MoJ answer for his negligence. The MoJ appealed to the Supreme Court.

In Mohamud v WM Morrison Supermarkets plc, M was assaulted and racially abused by K, an employee of WMMS plc, on the premises of the supermarket petrol station where K worked. When M brought a personal injury claim, a Recorder found that K’s actions were beyond the scope of his employment and so WMMS plc was not liable for them. The Court of Appeal upheld that conclusion on appeal. It held that, while it was relevant that the assault took place at K’s place of work and at a time when he was on duty, this did not establish a sufficiently close connection between the wrongdoing and the employment. Some factor going beyond interaction between employee and victim is required, such as an obligation upon the employee to keep order or an element of inherent risk of confrontation in the employment. M appealed to the Supreme Court.

The Supreme Court has now dismissed the appeal in Cox and allowed the appeal in Mohamud. In Cox, Lord Reed, giving the Court’s unanimous judgment, considered the ingredients for vicarious liability identified by Lord Phillips in the Supreme Court in Catholic Child Welfare Society and ors v Various Claimants and ors. In Lord Reed’s view, the most significant elements in Lord Phillips’ analysis were that (1) harm is wrongfully done by a person who carries on activities as an integral part of the business activities of the defendant and for its benefit; and (2) the risk of the wrongful act occurring was caused by the defendant in assigning responsibility to the wrongdoer. Where these elements are established in a relationship other than employment, vicarious liability is in principle capable of arising. Lord Reed emphasised that this analysis readily extends to many situations in modern workplaces where workers may in reality be part of the workforce of an organisation without having a contract of employment with it. He acknowledged that it extends the scope of vicarious liability beyond the employer-employee relationship, ‘but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party’.

In Mohamud, Lord Toulson, giving the unanimous judgment, endorsed the ‘close connection’ test for employer-employee vicarious liability that has prevailed since the House of Lords’ decision in Lister v Hesley Hall Ltd 2001 ICR 665, HL, but went on to identify the essence of that test. In his view, two matters are relevant. First, the nature of the job entrusted to the employee must be considered broadly; and secondly, the court must enquire whether there was a sufficient connection between the employee’s position and his or her wrongful act to make it right, under the principle of social justice, to hold the employer liable for the wrongdoing. Applying this analysis to the present case, Lord Toulson was satisfied that vicarious liability should be imposed. It was K’s job to attend to customers and, while his conduct towards M was inexcusable, it was within the ‘field of activities’ assigned to him. What happened thereafter was an unbroken sequence of events. K was attempting to remove M from his employer’s premises and reinforcing his orders by violence. Thus, he was purporting to act about his employer’s business. Although it was a gross abuse of his position, it was in connection with the business in which he was employed to serve customers. WMMS plc entrusted him with that position and it was just that, as between it and K, WMMS plc should be held responsible for K’s abuse of it.

In Wasteney v East London NHS Foundation Trust EAT 0157/15, the Employment Appeal Tribunal has upheld an Employment Tribunal’s decision that disciplinary action taken against a Christian senior manager for imposing her religious views on a Muslim junior employee was not discriminatory. The junior employee had complained that she felt that the manager was ‘grooming’ her by praying with her and inviting her to church services. The employer was entitled to deal with this as serious misconduct, namely the blurring of professional boundaries and the subjection of a junior colleague to improper pressure and unwanted conduct.

W, who describes herself as a born-again Christian, started working for the Trust in 2007 as Head of Forensic Occupational Therapy at a mental health services facility. In 2011, W launched an initiative in which volunteers from her church provided religious services at the facility. The Trust was initially receptive to the idea of establishing regular Christian worship at the centre but concerns arose about this initiative, with allegations of improper pressure on staff and service users. These concerns led the Trust to suspend the services and to give informal advice to W about the need for boundaries between her spiritual and professional lives.

In June 2013, a complaint was made about W by EN, an Occupational Therapist of Muslim faith. Among other things, she complained that W invited her to church events; sent her religious DVDs and tickets to church events; told her that she needed to let Jesus into her life; gave her a book about a Muslim Pakistani woman who had converted to Christianity; and prayed over her and laid hands on her by touching her knee. EN claimed that W’s conduct made her feel ill and that she felt W was ‘grooming’ her. The Trust investigated and concluded that three allegations against W were established – she gave EN a book promoting conversion to Christianity; she prayed for EN during a 1:1 meeting and laid hands on her; and invited her on several occasions to church functions. The Trust considered that W had failed to maintain appropriate professional boundaries, taking into account her seniority in relation to EN, and gave W a final written warning. When W appealed, this was downgraded to a first written warning with a recommendation of training. W brought claims of direct discrimination and harassment on the ground of religion or belief to an employment tribunal.

The tribunal rejected her claims. In relation to direct discrimination it found that, while the context of the disciplinary process was religious acts, the reason for her treatment was because these acts blurred professional boundaries and placed improper pressure on a junior employee rather than that they were religious acts. The tribunal was satisfied that the Trust would have taken a similar approach had W been pressing a particular non-religious point of view. The tribunal rejected W’s argument that the disciplinary sanction was ‘oppressive’ such as to amount to harassment. W appealed to the EAT. She argued, among other things, that the tribunal had failed to take sufficient account of her right under Article 9 of the European Convention on Human Rights to manifest her religious belief.

The EAT dismissed the appeal. Her Honour Judge Eady QC, sitting alone, noted that the manifestation of religious belief on which W relied was ’sharing her faith with a consenting colleague’. However, this assumed a factual basis that the tribunal had expressly rejected – namely, that EN consented to W’s conduct towards her. The tribunal did not find that the Trust had pursued the disciplinary action because she had shared her faith with a consenting colleague. Instead, it expressly found that the reason for the action was that EN had made serious complaints about acts which blurred professional boundaries and placed improper pressure on her. This was a permissible basis for rejecting W’s claim.

In Ebrahimian v France, the European Court of Human Rights has held that a hospital worker whose contract was not renewed after she refused to remove a headscarf, worn for religious reasons, while at work, did not suffer a breach of her right to religious freedom under Article 9 of the European Convention on Human Rights. The ECtHR held that the principle of secularism and the neutrality of public services justified the interference with the worker’s right to manifest her religious beliefs.

E, a Muslim woman, was engaged under a fixed-term contract as a ’social assistant’ in the psychiatric unit of a hospital in Nanterre, France. At her interview she had worn a headscarf, which covered her hair, neck and ears but left her face unobstructed. She continued to wear the headscarf while working, which involved acting as a liaison between patients, the hospital and social services. After just over a year of work, the hospital informed E that her contract would not be renewed since she had refused to remove the headscarf, in breach of hospital rules, which had given rise to complaints from patients.

E complained about the non-renewal to a tribunal. She was unsuccessful at first instance but an appeal court held that there had been irregularity in the procedure by which E had been informed of the non-renewal. The appeal court considered that the real reason for the non-renewal was not simply the breach of a dress code that applied to all public service workers but the fact that E’s wearing of the headscarf was a visible manifestation of her religious belief. The appeal court therefore quashed the hospital’s decision. The hospital then re-took the decision and confirmed the non-renewal of E’s contract, this time making it clear that the reason was her religiously-motivated insistence on wearing the headscarf at work. E brought new proceedings to challenge this ground of non-renewal. A tribunal rejected the complaint, finding that the non-renewal of E’s employment for wearing a garment that ‘ostentatiously’ manifested her religion was justified by the principle of secularism and the neutrality of public services. E twice appealed unsuccessfully and eventually lodged a complaint in the European Court of Human Rights. She argued that the non-renewal of her contract was a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights.

The ECtHR rejected E’s complaint by a majority of six to one. It accepted that E’s Article 9 rights were engaged and that there was a prima facie infringement. However, it considered that the infringement was justified under Article 9(2). The ECtHR was satisfied that it was ‘prescribed by law’, as Article 9(2) requires, since the French Constitution enshrines the principle of secularism, and case law from the Constitutional Court and the Conseil d’Etat (the highest court in matters of public and administrative law) has consistently held that the neutrality of public services is an important part of that principle. The ECtHR accepted that no national legislation or case law specifically prohibited hospital workers from wearing an Islamic headdress. However, it relied on a judgment of the Conseil d’Etat, decided six months before the non-renewal of E’s contract, which endorsed a similar restriction in relation to teachers. In the ECtHR’s view, this judgment should have made it clear that the same standard could be expected of all public service workers.

The ECtHR went on to hold that the infringement of E’s Article 9 rights had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users’ rights to receive services free from discrimination. It also accepted that the application of the rule to E was ‘necessary in a democratic society’. While there was no suggestion that E had been proselytising or putting patients under pressure, it could reasonably be considered necessary to prevent a public hospital worker from manifesting her religious beliefs in the exercise of her functions, in the interests of ensuring the equal treatment of patients. As for whether this was a proportionate means of preserving secularism and neutrality, the ECtHR accepted that E had suffered serious consequences for manifesting her religious convictions. However, it was satisfied that, following the Conseil d’Etat’s decision in the teachers’ case, E knew that she was expected to conform to a neutral dress code while at work and that she had been asked to reconsider her decision. In these circumstances, the non-renewal of her contract for failure to comply was proportionate. This is an interesting decision but it remains to be seen if it is likely that in similar circumstances, the English Courts would follow its determination.

In Barbulescu v Romania, the European Court of Human Rights has held that there was no violation of an employee’s right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life, the home and correspondence) in circumstances where an employee had been dismissed for using the company’s internet for personal purposes during working hours. While the employee’s Article 8 right had been engaged, the employer’s monitoring of his communications pursuant to workplace rules and regulations had been reasonable in the context of disciplinary proceedings, and the Romanian courts had acted appropriately in balancing the employee’s rights against the interests of his employer.

B, a Romanian national, was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. On 13 July 2007 the employer informed B that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the internet for personal purposes, contrary to internal regulations. When B denied this, he was presented with a transcript of messages he had exchanged with, among others, his fiancée and his brother, some of which related to personal matters such as his health and sex life. B’s employment was terminated on 1 August 2007 for breach of the company’s regulations.

B contended that his employer had violated his right to correspondence protected by the Romanian Constitution and had breached the Criminal Code. The Romanian County Court dismissed his complaint on the grounds that his employer had complied with the Labour Code provisions on disciplinary proceedings and that B had been duly informed of the employer’s regulations prohibiting use of company resources for personal purposes. Following an unsuccessful appeal, B applied to the European Court of Human Rights contending that the employer’s conduct had disproportionately infringed his Article 8 rights.

The Court accepted that Article 8 was engaged on the facts of the case, the employer having accessed B’s Messenger account and used the transcripts of his communications as evidence in the domestic litigation. However, it held – by a majority – that there had been no violation of Article 8. It stated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. The Court had to examine whether Romania, in the context of its positive obligations under Article 8, had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests. In the Court’s view, it was not unreasonable for B’s employer to seek to verify that employees were completing their professional tasks during working hours. Furthermore, B’s employer had accessed his messaging account in the belief that it contained client-related communications only. B had been able to raise his arguments relating to the alleged breach of his Article 8 right before the domestic courts, which had duly examined his arguments and found that his employer had acted in accordance with the Romanian Labour Code’s provisions on disciplinary proceedings. B’s disciplinary breach – namely, his use of company resources for personal purposes – had been established, and it was clear from the domestic court judgments that they had used the transcript of B’s communications only to the extent that it proved that breach. The ECHR accordingly concluded that the domestic courts had struck a fair balance between B’s rights under Article 8 and the interests of the employer.

The lesson to be learned here is that Employers in England and Wales can dismiss for breach of their own internal internet procedures after taking disciplinary action against an employee for private communications where it finds that there has been a breach of its procedures. It may be difficult for an employee to win a claim for unfair dismissal in such circumstances.

Was an instruction to a non-native English speaker not to speak in her native language at work discriminatory?

No held the Employment Appeal Tribunal in the case of Kelly –v Covance Labs Ltd.

The Russian-born Claimant alleged that she had been subjected to discrimination and harassment on the grounds of race or national origin. The Claimant was instructed not to speak Russian at a laboratory involved in animal testing, her conduct in leaving her work station and talking on her phone gave the Respondent cause for concern that she might be an animal rights infiltrator. The Respondent’s language policy operated in the context of the Respondent’s requirement for its English-speaking managers to understand conversations for security reasons.

On the facts found by the employment tribunal, the policy of requiring only English to be spoken at work was not applied because of the Claimant’s race or national origin, but her behaviour at work in the context of that particular working environment, it was neither direct discrimination nor harassment, and there was no evidence that the instruction had caused any harassment. The EAT held that the employment tribunal had properly directed itself in law and made permissible findings on the facts. Whilst it can be direct discrimination or harassment to ban the use of a foreign language at work, a comparator speaking any other language apart from English would have been treated in the same way as the Claimant.

The case shows that as long as the employer has legitimate reasons for the instruction to speak English as demonstrated in this case, then the instruction is not likely to amount to discrimination.

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination as part of the subsequent Employment Tribunal claim. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ’cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

The lesson to be drawn from this case is that the EC procedure may cover the substantive claims that an employee intends to bring against in employer in the tribunal but other claims may be added later at the discretion of the tribunal. This may be another good reason why employers may want to settle early especially where the case is likely to be complex.

Hallens Solicitors

59 Stanley Road, Hounslow, Middlesex TW3 1YA

Tel: 020 8707 1957  |  Email: msh@hallens.co.uk

website by Compugear Ltd