HR Update: dismissals for conduct short of gross misconduct, strict liability for disability discrimination, comparators under the Part Time Workers Regulations
Jack Harrington

What’s new

This month we look at new guidance on dress codes and discrimination, Acas guidance on religion and belief discrimination, and updates to the EHRC’s handbook on the Equality Act

EHRC updates handbook on the Equality Act 2010

The Equality and Human Rights Commission has published a handbook which provides a brief overview of the Equality Act 2010 and guidance for advisers in England and Wales. The handbook is not designed to be a comprehensive summary of equality law but to act as a reference guide and direct further reading. The handbook covers:

  • the definition of the nine protected characteristics;
  • an overview of different forms of conduct prohibited under the Equality Act;
  • the EHRC’s role in monitoring and enforcing the law and,
  • how the Equality Act applies in different contexts including services and public functions, transport, premises, work, education, and the Public Sector Equality Duty.

Government guidance on dress codes and sex discrimination

The Government Equalities Office has published guidance for employers, employees, and job applicants on dress codes and discrimination. The guidance was produced following recommendations made in a report by the Women and Equalities Select Committee and the Petitions Committee. The report called for the Government to impose stricter penalties on employers who enforced discriminatory dress codes however the guidance contains no details of any measures to toughen up sanctions.

The guidance is brief and vague but sets out how the law might apply in cases of sex discrimination and employers’ legal responsibilities when setting a workplace dress code. The guidance specifically addresses the issue of transgender employees and religious symbols in the workplace.

It should be noted that the guidance only deals with the rights of employees and does not address the rights of the wider category of workers protected under the Equality Act 2010 such as agency workers.

New Acas guide on religion and belief discrimination

The Advisory, Conciliation and Arbitration Service has published new guidance on religion and belief to help prevent discrimination at work.

The guidance offers advice to employers where discrimination is most likely to occur, namely recruitment, requests for annual leave, dress codes, and training and development opportunities.

As well as an explanation of the law, it contains practical advice on a variety of issues including:

  • talking about religion at work
  • food and fasting
  • washing and changing rooms
  • breaks away from work for religious reasons

Amendments to the Time Off for Public Duties Order

 The Time Off for Public Duties Order 2018 (SI 665/2018) was made on 30 May 2018 and will come into force on 1 October 2018.

The Order will grant unpaid time off work to four groups of volunteers in the criminal justice system who monitor conditions of those in custody. These four groups are:

  • Lay Observers (who monitor conditions in court custody and in cellular vehicles).
  • Independent Prison Monitors (who monitor conditions in Scottish prisons).
  • Immigration Visiting Committees (who monitor conditions in Immigration Removal Centers).
  • Short Term Holding Facilities Visiting Committees (who monitor conditions at immigration facilities at ports and airports).

Currently employers are not obliged to grant time off work for the above volunteers to perform public duties, but they will be obliged to from 1 October 2018.

Case law review

Strict liability for disability discrimination

The Court of Appeal has confirmed that an employer may find that it has discriminated against an employee for a reason arising as a consequence of his or her disability even when the employer was not aware at the relevant time that there was a link between the disability and the reason for dismissal. Read more

Conduct short of gross misconduct

Two recent EAT decisions have given food for thought on the subject of dismissal for serious misconduct. Is it fair to dismiss for conduct short of gross misconduct without prior warnings?  Is it fair to dismiss where there has been a course of serious conduct but no single act of gross misconduct? Read More

Part-time worker claims – definition of ‘the same type of contract’

In Roddis v Sheffield Hallam University the EAT held that the use of the term ‘zero-hours’ as part of the contract of employment for a ‘part-time associate lecturer’ did not preclude him arguing that he was on the same type of contract as a ‘permanent, full-time lecturer’ for the purposes of a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Read More

Religious harassment

In Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) the EAT determined that asking a Muslim employee whether he supported a particular terrorist organisation (namely Islamic State), was not harassment relating to religion. Read more



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