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Latest Brief - Week Ending 20 October 2017

Segregation of boys and girls at a faith school was direct discrimination

In HM Chief Inspector of Education, Children's Services and Skills v Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426 the Court of Appeal had to consider whether the segration of boys and girls aged 9 and above was discriminatory.   The draft Ofsted report criticised the faith school for its segregation policy which they felt meant that pupils' social development was limited and did not prepare them for dealing with members of the opposite sex on leaving school.
The school brought a judicial review claim to the High Court, which found in the school's favour in holding that whilst there was a difference in treatment based on, this could not equate to less favourable treatment as both sexes were treated the same .  Ofsted appealed.

The Court of Appeal unanimously overturned the High Court's decision and found that the segregation policy amounted to direct sex discrimination under the Equality Act 2010. The Court of Appeal stated that the High Court should not have looked at the groups of individuals, but have looked from an individual pupil's perspective as to whether they were treated less favourably. 

Interestingly, as motive is irrelevant in deciding whether there has been direct discrimination, the fact that parents chose to send their children to a segregated school was not relevant to the question of whether segregation was discriminatory.

Possible introduction of time off with pay on death of a child

The Parental Bereavement (Pay and Leave) Bill 2017-19 was published on 13 October 2017. If enacted, it gives power to the Government to give employees who lose a child below the age of 18 (including a still birth after 24 weeks) the right to: 

  • At least two weeks' leave (irrespective of their length of service);
  • At least two weeks' statutory bereavement pay (equivalent to statutory maternity pay)

Employees will be protected from detriment, redundancy and dismissal as a result of taking bereavement leave.If passed, regulations are expected to be introduced in 2020.

Latest Brief - Week Ending 6 October 2017 

A disciplinary investigation can't be too thorough! 

This week, the EAT has held that a Tribunal was wrong to find a misconduct dismissal unfair on the basis that the investigation considered previous incidents that had not been treated as disciplinary issues.  The case involved an employee working for NHS 24, who was dismissed for gross misconduct following an incident whereby she failed to ask the appropriate questions, and referred a patient to an out-of-hours GP service rather than calling 999.  She had been responsible for two previous incidents because of her triage decisions, but both of these incidents were dealt with through training rather than disciplinary action.  Both of these incidents were included in the investigation report.  

The Tribunal in this case had found that the decision to dismiss, which took these previous incidents into account, was within the range of reasonable responses, and therefore fair.  However, it went on to find that the dismissal was unfair on the basis that these incidents should not have been included within the investigation report, as they had not led to disciplinary action.  The EAT overturned the decision of the Tribunal, and held that the dismissal was fair.  Given that the Tribunal had gone on to find that the decision to dismiss, which took these previous incidents into account, was within the range of reasonable responses, it was perverse of it to find that the dismissal was unfair because the investigation had essentially been too thorough.  Unless it could be said that the earlier incidents should never have been a factor in the decision to dismiss, there was no reason why they should be excluded from the investigation report.  

The case reiterates that taking into account past misconduct in making the decision to dismiss can be an issue, and can render the dismissal unfair.  However, what the case does clarify is that simply including additional information in an investigation report will not necessarily make a dismissal unfair.  This may be helpful clarification for employers going forward.  

Updated guidance on modern slavery published

The Home Office has published updated guidance on slavery and human trafficking in supply chains, following the initial guidance which was published in October 2015.  The document provides guidance to employers on how to avoid modern slavery breaches in the workplace, something that may be becoming increasingly difficult due to the complexity of the modern labour market.  The guidance can be found on the government website.

A new study has shown that employers are uncertain about the right to work procedures they have to follow when hiring overseas workers.  Over 50% of employers surveyed who held Tier 2 or Tier 5 licences were unaware of the sanctions for failing to obtain right-to-work documentation for overseas workers, and only just over 30% of employers were clear on the documents that they had to hold for such workers.  The Managing Director of the firm that carried out the survey noted that if employers wish to retain their overseas workforce following Brexit, they will need to make sure that they are fully prepared.