'Employment Law at 11' is a series of 45-minute webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors.

Scott Alexander, Head of Learning and Development at Legal-Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan, Director at O'Reilly Stewart Solicitors.

This month, the topics covered include:

• Holiday pay – PSNI decision
• Max-Planck Case - untaken annual leave
• Handling requests for annual leave
• Vicarious liability
• The legal risks of Christmas parties
• Ashers v Lee Supreme Court Decision

Questions in this webinar include:

 Does the Ashers case have any impact on employers dealing with requests from staff who do not wish to work Sundays because of their religious beliefs?

Log in to watch the recording and read the full transcription.

Transcript

Scott: I'm Scott Alexander. I'm from Legal-Island. I'm with Seamus McGranaghan from O’Reilly Stewart. Welcome to the Employment Law at 11:00. Apologies for last week. The platform that we use had a bit of a glitch, but we sorted that now and you should be able to hear. If you want to send us a little message on the chat box, just saying, "You sound wonderful," we'll take that.

We will be changing the topics advertised for today. We had the first of our annual reviews of employment law yesterday at the Titanic and we were discussing a number of cases on holiday pay. There's holiday decision from the European Court of Justice that we want to discuss. We'll then move on to Ashers and we'll be looking at Christmas parties and hopefully, if we have a little bit of time left, we might even be looking at vicarious liability and issues along those lines.

So, welcome, Seamus. How are you?

Seamus: I'm good, Scott.

Holiday Pay - PSNI Decision

Scott: We are discussing Agnew and PSNI case that's been in the news. It kind of broke on Monday. The case just went online. I only saw it—we were at the annual review yesterday. The Word document on the tribunal website this morning, but I presume it went on yesterday. It's a big document. It's from the Vice President, Noel Kelly. It's 69 pages. It does an awful lot of stuff, but give us a bit of the background…

Seamus: Yeah. This is a decision hot off the presses, so to speak. There was some reference to it on the BBC website, as you said there, and the tribunal now have issued their online decision in relation to this one. It's right off the presses, this case, to be very fair to the tribunal itself was only heard on the 26th-27th of September and then back again on the 1st and 2nd of October. So, this has been turned around in a short space of time.

Depending on how you look at this decision and see how extensive it is, it runs to, as you said, there are seventy pages. There's a lot to take in and a lot to understand on the basis of the decision and we haven't had a chance to do that in totality yet because it's just been out. But on the basis that we're having our discussions here this morning with our employment law review, we thought it was very important to get this across at this point.

The background of the case is essentially listeners might remember there was the Bear Scotland and Fulton case back in 2015, which was an English decision. Following on from that decision, these claims were brought and I think they've been run for some period of time. But essentially, what these claims arose from was around 3,700 claimants.

Scott: This is the PSNI cases.

Seamus: Yes.

Scott: So, it includes both police officers and civilian staff.

Seamus: And civilians, yes. Exactly. You may have civilian staff that are working in desk jobs, maybe in HR departments, whatever it is across that basis. Then you have the officers themselves that are working on the streets and in the police stations and everything else or taking lead claimants. There were 11 police officers and three civilian staff members. So, the tribunal had a good overview of what the situation was on the ground.

The issues were really in relation to those groups of people, the police officers and the civilians should have their overtime and their other allowances included in the calculation of their normal pay in order to work out their holiday pay and their entitlements. Up until this point, holiday pay had been based on working hours and having be taken into account. I suppose the really interesting aspect of these particular workers, these employees within the place, that it's a profession where they're doing quite a lot of overtime.

They're doing it on a voluntary basis, probably. There will be the peaks and the high points through the year where there might be civil unrest and things like that, but certainly throughout the year, they would be doing quite a number of additional voluntary hours, which is really where the grievance started in the first place.

Scott: Yeah, that's a key point. If I get a bonus once a year, it's not really part of my normal pay. If I only do overtime once in a blue moon, it's not part of my normal pay and therefore it's not unusual to only give me my basic pay when I'm on holiday. But these people here seem to be working quite a lot of overtime quite a lot of the time and it forms a big chunk of their take-home pay normally.

When they go on holidays, they don't get as much for holiday pay. The European court over the years has been saying that is a disincentive when it comes to normal contractual payments or indeed overtime. The Bear Scotland case and Fulton, it effectively established, look, it's not just the contractual overtime. It's the voluntary overtime that people do. If you do it often enough to make it normal and regular, your holiday pay should reflect the fact that you get more pay in your weekly wage or monthly wage.

Seamus: The key word there is that it's reflective. What the clear decisions were are that your holiday pay should be reflective of what your normal pay is. Therefore, it should include all the entitlements. That was essentially set out in the Bear Scotland case in 2015. These claims were brought then to our industrial tribunal here in Northern Ireland. I think the previous claim in terms of the Bear Scotland case was an EAT decision at the time.

It's interesting because in a slightly different decision that has come out in our tribunal here and it's interesting to see that they've obviously taken them in the account and they've considered what the decision was in Bear Scotland, but they haven't been afraid and they've been strong in making their own decision here and their own interpretation of what the legislation is. It has been certainly an interesting read in terms of the case and essentially, what the tribunal has come back to say is that absolutely and clearly, that the additional voluntary overtime should be included within the calculations for holiday pay.

What was interesting for this case is that the claims were going back for almost over . . . some of them back as far as 20 years in terms of their claims. Now, what we were clear about was that England and Wales, there had been legislation put in place to say that any back date can only come back as far as two years, but there wasn't any equivalent legislation that was passed in Northern Ireland for that. There could be a position that we didn't have our government in place to do that. But I'm guessing there in terms of . . .

Scott: We were chatting about this earlier. I don't remember it being part of the employment act of 2016, so I'm not sure it got through the assembly when people were discussing any kind of back stop for claims. So, whatever comes into Northern Ireland, I don't know. It doesn't really matter for this purpose. It doesn't apply. There's no limit effectively for saying that I have not been paid my full pay.

Some of those claims are saying, in essence, it should go back to 1998 when the working time directive and indeed the regulations came into play and others you might be arguing, well, I'm going back six years or whatever if it were to be a breach of contract. These ones are actual unlawful deductions from wages claims under the employment rights 1996 order and those ones apply to the civilian workers.

Seamus: Yes.

Scott: The police officers are actually office holders and therefore, they're not employees and the Vice President mentioned the principle of equivalence here. He's saying yes, the police are entitled to normal pay, if you like, when they're taking their holidays, and he's also alluded to a 12-month period to try and calculate what that average pay is.

Seamus: And that's really interesting because the guidance previously has been that we're looking back over a period of 12 weeks and that tends to be in practice on a daily basis whenever I'm dealing with these sorts of queries. Your go-to is your default, 12 weeks. Let's look over the average of the 12-week period. That may work very well in circumstances, but what this decision is telling us is, he says that each and every circumstance requires an individual analysis and he says that that may be in some cases that you're reviewing it over a 12-month period and he said that would seem to be appropriate.

You're widening it out there in terms of that and I think that is sensible if you have a situation where there are maybe peaks and troughs in terms of overtime that's been done or in this case where it was being consistently done probably on a week by week, month-by-month basis, but it widens it out certainly in terms of the 12-month period. It's interesting in terms of what the usual practice would be for 12 weeks now to 12 months.

Scott: Okay. Just for one or two listeners that have come in, we've actually moved from the agenda a little bit. We're going to chat about—we are chatting about the PSNI holiday pay cases because they don't just apply to the PSNI themselves. They will affect all the listeners. We will be getting around to other items on the agenda if you're listening in. We're going to be talking about that and then we'll be moving on to the Ashers case once we've discussed some holiday issues and working time issues that have developed.

But the principle, getting back to the principle here and the fact that these cases here involve 3,500 staff. The headline figure is £30 million in backpay.

Seamus: The final figures, there's certainly no quantum provided for in this decision . . .

Scott: There isn't. It goes down to £300,000 for some of them, so it depends on whether Noel Kelly has got his decision right, I suppose. The bottom line is there will be a sizeable pay-out at some stage. £300,000 is quite a lot of money—less than £30 million, but it's still quite a lot of money. There will be people listening who don't pay average pay where you've got people regularly, normally working overtime. That's pretty clear that's wrong, regardless of the differences between the Northern Ireland decision and the GB decisions, it's pretty clear it's wrong in law under the working time directive and the regulations.

Seamus: Yeah. As a legal practitioner in advising clients, you're always looking at it from a commercial point of view. The reality of the situation here is that this decision is out there and it's subject to any appeal that comes of it. As it is at the minute, this is the advice that would be given to any employee that's aggrieved and phones the Labour Relations Agency for advice or phones the Citizens Advice Bureau, whatever it is, this is the advice they're going to get and they're going to be told your holiday should be reflective of what your actual working position is.

So, even if your contract says the 28 days and you're paid on the same basis as that, that's all going to change and employers need to realise what that is now. This is nice that we're giving, the discussion we're having this morning is really to get that message out there that this needs to be taken on board and you want to avoid any sort of heavy litigation problem.

Scott: There's another point I suppose that Noel Kelly picked up on to do with the breaks in annual leave.

Seamus: Yes.

Scott: He says with respect, the court got it wrong in the case of Bear Scotland because in Bear Scotland, he said, the first 20 days are working time directive holidays and the chances are there's going to be more than three months between that day, if you like, and the start of the new annual leave year. Therefore, there's a very good chance the back pay won't even be going back two years. There's a good chance it's only going back a few months and it might only include the current leave year that somebody's in. He says that's not the case.

This is a series of deductions. They've never been paid correctly. He also seems to say that the leave under the working time directive, which is 20 days or four weeks, and the additional leave we get in the UK, which is eight days . . .

Seamus: Yes, under the regulations.

Scott: . . . to take it up to 5.6 days under the regulations and indeed the contractual leave because many people get more than the working time regulations statutory amount—all of those are indistinguishable and you can't say that the first day or the fifth day or the 20th day come under the directive, the regulations of the contract.

Seamus: Absolutely, in terms of trying to divide those 28 days up and categorise them is clearly saying that you can't do that indistinguishable. We had some chat about that just before we started here. We both agree that's sensible in terms of how you do it. It's not that whenever you take your holidays you're saying, "I'm going to use my first of my 20 days on to the working time directive and I'm going to try to be smart about it in terms of how to do it."

The decision here is saying that they're indistinguishable. It does say with respect that they feel that Bear Scotland and Fulton is incorrect in that respect and they're taking a step away from it. It's something for us to be aware of in this jurisdiction and that this is the case law that we're going to have to follow, subject to NEFP.

Holiday Leave and Carryover - The Max Planck Case

Scott: It has indicated, if you haven't read it, listeners, it's indicated throughout that this case will be appealed. It seems fairly clear. Now, moving on slightly, there was a case that also came out on Tuesday. It was an ECJ case. It's actually on the weekly review of developments if you subscribe to Legal-Island. It's the Max Planck Institute case.

Seamus: Yes.

Scott: So, tell us a little bit about that, Seamus.

Seamus: I did come across this case this morning in relation to whenever I got email from Legal-Island with my annual review and it's been a busy week. I had a quick look. This case is really around looking at if we use the old snooze you lose type of scenario in relation to holiday. So, a lot of people often in the contract, if you don't take your . . .

Scott: Full entitlement.

Seamus: Full entitlement within the annual year that—within the annual holiday year that you'll lose it, that you can't carry it over and you'll see sometimes they'll say you can carry it over with exceptions. In a lot of places, there's a discretion that's used and it creates all sorts of issues. But this case is really focused in around looking at what the situation was for the employee when it came to holidays that they hadn't used.

There are circumstances, as we know, that someone has just been so busy this year, I haven't had an opportunity to take my holidays. This is what this case originated from. What the ECJ is saying is they really put a heavy onus on employers and it's requiring employers to really look at two scenarios, one, where an employee can't take the leave and there should be an entitlement, then that they should lose that leave for it.

The second one is there's an onus on them to remind the employees on what leave they have left during the year and really encouraging and almost bringing to light to the employees, "Look, you have leave here to use and you should be using it." Certainly, what it's clearly saying is this idea of that if you don't use your holidays within that year, that that's not something that's going to be able to continue on. So, sort of a holiday focused here today, but at the same time, these are important decisions that are coming out. You don't want to fall on the side of being brave and taking a test case or being ignorant to it and ending up in litigation over it.

Scott: But in this one here, because it's a working time directive case and it's come from the ECJ, it will be covering the 20 days' entitlement. It's not the regulation and it's not the contractual entitlements. It's 20 days. If you haven't had 20 days and you haven't had an opportunity to take the 20 days and the employer hasn't encouraged you or reminded you, you better take your days or you will lose them. If they haven't done that, the employee is entitled to carry over any unpaid leave within the 20 days.

Seamus: Exactly. We talked about how maybe there is maybe quarterly email reminders to employees, giving them totals of what days they've taken, what they've got left within the holiday year. I suppose a combination of holidays is a different argument all together, but at the same time that the employees have been made aware and they're clear about what the situation is there, we are being clear about that, that it only relates to the 20 days, but we have to take into account what our recent decision has said and we can't sort of categorise those either. So, it's only really you're looking at 20 straight days.

Handling Requests for Annual Leave

Scott: Okay. On the agenda, one of the things we were looking at is things around Christmas. One of them, just sticking to the leave one, we'll stick with this at the moment, is request for annual leave. I have been overwhelmed with requests from staff from time off between Christmas and new year. I hate saying no, but if I grant all the requests, I will be left short-staffed. Am I entitled to refuse and what is the best manner in which to go about this?

Seamus: Well, this is a common occurrence in lots of offices including my own, where people at the start of the year will say, "I want to book holidays off at Christmas," maybe family coming over or they're traveling themselves and they need specific time off. A lot of people will just leave it until the last lot of months.

Typically, within my office here, we have a similar situation, whereby you'll get an email to say this is what your holiday entitlement has left. This is the office open and closure dates over the Christmas period and we'll try to do that around October or early September time and the October to make sure that we get their requests. We have to be clear with our staff also that our business is going to be open on certain days and we require staff in order to make sure that we meet our business needs.

Unfortunately, there are circumstances sometimes where you're not able to provide the leave because of the fact that you need the resources and you need staff within the business. That said, it does create an interesting argument where an employee does have leave left and the employer can't facilitate it. There will be contractual provisions normally with holidays to say that you require a certain period of notice and there's always generally within the contract a right to refusal on the basis of business needs.

So, it's only what the business can accommodate. You may on the basis of the recent case law there have to be able to facilitate either them taking the leave at an earlier period than the Christmas holidays, maybe the week before Christmas or alternatively permitting them to carry that over if you're unable to facilitate it. So, it does change the goal posts. That's why this is quite a good question. Even from where we urged you to cover this question last week, the goal posts have changed, but that's employment law for you.

Scott: It's all about reminding people now and making sure they can. If you have a problem where there's a glut at the end of the year and people can't physically take their holidays, then they'll be able to carry them forward at the very least under this program. So, put a little email in there just from our listener south of the border asking does it apply to Northern Ireland and GB only or does it cover the Republic of Ireland. The European Court of Justice will cover the Republic of Ireland.

So, that case about carry over will, in fact, if you read that decision, the Max Planck decision, it actually specifically says from the European court, if the domestic court, including the courts in Dublin, the adjudicators' service or whatever, if the domestic court can't read in to the domestic legislation, the right to carry over and right to be reminded effectively if employers are not required to be proactive, then the domestic court must disapply the domestic legislation. So, it's been quite specific there. That includes the Northern Ireland tribunals, it includes any tribunals in GB and indeed any adjudicators in Dublin. That part does apply.

Vicarious Liability

Let's move on to another big case we were due to discuss last week. It's vicarious liability. The case, it seems extreme now, the way that vicarious liability has moved in just the last two years really, and both of them to do with Morrisons. But the Court of Appeal recently held in Morrison Supermarkets against various claimants that employers can be vicariously liable for harm caused by the criminal activities of their employees in relation to data breaches. This was a rogue accountant who put stuff on the internet and put—I think it was 100,000 records of staff members.

Seamus: That's right. It was a case from 2014. The accountant was Andrew Skelton. He was a senior IT auditor within Morrisons. He posted files containing the personal data of just shy of, it's about 2000 shy of 100,000 employees. He put them on a file sharing website and he included their names, addresses, genders, date of birth, and phone numbers, national insurance numbers, their bank codes, their bank account numbers, and their salaries.

So, this was very clearly personal information under data protection. Then what he proceeded to do was he put the copy of the data on their CD and he passed it to newspapers in Bradford where Morrisons had its head office and as a result of that, it's just about 5,500 employees that brought a claim against Morrisons in terms of compensation for breach of their statutory duty. There are various claims there in relation to that.

The basis of the claim is that Morrisons had primary liability for their own acts and admissions and vicarious liability for the actions of one of their employees harming his fellow workers. Now, Mr. Skelton was separately prosecuted and the court system, the criminal courts . . .

Scott: He got eight years or something like that, didn't he?

Seamus: It was a heavy enough penalty in some respects, but what the case was clearly saying was that Morrisons was liable also. So, it's this idea of, again, the vicarious liability broadened and the flood gates tending to open. This isn't the only case, Morrisons, where there have been these types of claims brought. There's a number of them that are going to big class actions, but with the penalties now that you have also under GDPR, very serious.

I think the question is asking about whether or not you can—if you should and if you can obtain it, should you get insurance. I think the answer to that has to be absolutely. I'm not sure if there is a policy or if there is an underwriter that is willing to cover those sorts of claims, but certainly, a practitioner that does a lot of work for employers, you have to face sympathy in a way for Morrisons, because I don't think there was any serious criticism for their lack of failure or their processes in terms of how they were protecting the data, but what they had was they had this rogue employee. It was somebody that wanted to take this action, somebody that wanted to do it.

Scott: It won't need to harm them. There was a discussion about whether it matters, whether his purpose was to harm the employer or harm the employees. But the court was saying it doesn't really matter what the motivation is, these employees have been hurt.

It does seem extreme though because Morrisons last year, they had the case of Mohamud, where one of their workers at the filling station got out of the booth and beat up a customer and they were held liable for that because there was a closeness between his job and the way he carried out his duties. No way are employers encouraging their employees to beat up employees and in no way are employers saying, "You know what, we're encouraging you to put personal data on to the internet."

Seamus: Yeah. No. Absolutely.

Scott: But if the courts are saying—this is a Court of Appeal case. In this case, the Supreme Court and Mohamud, if the courts are saying you're going to be held liable, Mr. Employer, where employees do something wrong in the courts because they're employed and there's a close enough connection because they're wearing the uniform or they're on the workplace or whatever, that widens it. It really just widens it to an extent. You can't really do much to stop it other than insure yourself.

Seamus: Absolutely. Certainly, if there's a policy out there that you can obtain and it seems to be on that the case law has developed, there shouldn't be any hesitation in obtaining because it's got to be something that will be out of your control. No matter what your policies and procedures are . . .

Scott: But insurers, surely, they would like to minimise the risk that they're going to have to pay out. You can get insurance against the data breach for instance and that's fair enough, but insurers will expect you to put certain protocols in place to minimise the chance they'll have to pay out. In this case here, effectively, the employer is being held liable for the criminal acts of employees.

Now if I were an insurance firm, I might be saying, "You know what? Don't employ anyone that's been convicted of theft because they might do something or don't convict anyone who's been convicted of fraud, don't employ Mr. Skelton." What that does to the rehabilitation of offenders legislation is put a coach and horses right through it.

Seamus: Absolutely.

Scott: It's really unfortunate. If employers are being held for bizarre acts by employees that no one in their right minds would ever ask them to do, if they're being held liable for that, then what happens is some of the more vulnerable people in society might never get employed again.

Seamus: Exactly. There has to be a balance somewhere along the lines, but that's exactly it. You would expect that the insurers will want more than just a copy of your policy and procedure to make sure they have one. They'll be looking for evidence that there's a system in place and that it is adhered to.

Scott: It almost begs the question do you have to train staff not to beat up customers or not to put nasty things on the internet or, I don't know, whatever else, not throw tin cans across the supermarket or whatever. Some of them are so obviously—you don't put everything into a contract. It just seems excessive.

Seamus: It does, certainly. But it is what the case law is saying.

Scott: It is the case law. We're stuck with it, folks.

Seamus: We have to have cognizance of that.

Christmas Parties

Scott: Okay. We want to make sure that we deal with Christmas parties. There are a couple of things on the agenda that we have, but certainly Christmas parties is one of them. What are the legal risks here on Christmas parties and what strategies can be employed to mitigate the prospect of any claims rising? In particular, what can employers do to prevent and deal with allegations of sexual harassment around Christmas parties?

Seamus: Yeah. We really are hammering the topic of holidays here today because now we're talking about Christmas holidays and the Christmas party.

Scott: They're still working there just before the holidays.

Seamus: That's it. But at the same time, it is an important one. It's one that arises every year because every Christmas party, there's always some sort of issue that arises. Inevitably, I will get a lot of phone calls over this period in terms of whether it's the drunk and disorderly behaviour or the sexual harassment that has happened or suddenly the brave employee that confronts the employer about the pay rise they've been wanting and wants to have a serious discussion in an aggressive manner as to why they haven't been given that pay raise.

There's lots of issues that can happen. I suppose from my view, there's kind of three main ingredients to where a Christmas party ended up being a bit of a hangover, if we put it that way. There's the drunk and disorderly behaviour. It's people taking too much alcohol and drinking too much. There's the worry of violence happening or damaged property at the venue the party is being held at. There's this risk also of sexual harassment.

Scott: Which would be, I suppose, combined with social media makes it even worse.

Seamus: The law is clear on the point that work Christmas party is an extension of the workplace and normal working environment, whether it's in the office or whether it's in another venue or inside or outside working hours. Some employers do take a view where they say, "We don't organise a party and we don't contribute any money towards it."

Instead, what we do is we give all the employees a bonus instead or we give them some other gift in terms of showing our appreciation. It has gotten to that point where some have had their fingers burnt. They've taken that road. But legally, the employer can be held responsible for its own or its employees' festive actions, if I put it that way.

Scott: The Bellman case, Northampton Recruitment, it established effectively that if the boss is around at the after party-party, when you have a few drinks after the official bit, that still would be an extension where effectively—in that case, they were talking about work, he decided to give them a few words, punched an employee, who happened to be one of his friends as well, and that employee ended up with brain damage and sued the company.

And the company, again, going back to vicarious liability, the company has been held vicariously liable for the actions of the director there, even though it was Christmas party, even though the official party had finished because in effect, the employer encouraged them to go for more drinks and so on. That could have been sexual harassment. In this case, it wasn't. It was a very serious brain injury.

Seamus: Yes. I think that it would apply to any kind of liability that would arise from that no matter what it was, but a couple of tips there for employers if they're organising their Christmas party—I think it sounds very boring when it comes to the Christmas party, but set a party policy. If it's a work activity, there's guidelines in place such as what's acceptable in terms of standards of behaviour and that you're making your employees aware of it so that they're aware in advance what the expectations are.

You could also look to identify your potential hazards, whether it's inside or outside the office, particularly have in mind people with physical impairments or disabilities or whether the venues you're going to are going to be able to facilitate them as well. You don't want anybody feeling ostracised as a result of their disability or issues arising in terms of dealing with being treated less favourably.

I think it's always best to avoid discussions with employees about promotion, career prospects, salary, bonuses, anything like that during the Christmas party because it will only seek to raise expectations or alternatively, it will fan the flames of an aggrieved employee. Good idea to limit the alcohol. If you're going to have a free bar or the credit card is behind the bar, everybody get whatever you want and all that kind of stuff, good idea to limit that in a sense in terms of your liability. It'll help.

Again, if you have junior staff, anybody under 18 that might come out for the dinner, make sure they're not breaking any laws or you're not being responsible if they're taking alcohol. And then again, just consider how everybody is getting home, what are the options available. It would be interesting in terms of employees returning from an event when something happened like that as well and where the employer's liability comes from that. Sometimes, employers will organise taxis. They'll organise buses and things.

But just watching out for the liability that arises from that, and making sure that your employees are not taking alcohol and driving after that as well. We've had a couple of events where there are circumstances that have arisen or a game where they're coming into where the party is during a working week and they're coming in to work the following day if they're coming in to work the following day and they've drank excessively because the company was paying for all of the alcohol and something happens on their way in to work, there's a potential that there's going to be a problem for the employer.

Scott: Especially if you look at the way vicarious liability has been going over the last year or two.

Seamus: Absolutely. Even the same for your employees that do take too much alcohol whenever they are out on the Christmas—for some people, it is the only night of the year that they do get out. They let their hair down and it all goes wrong. You do have a responsibility to make sure those employees are taken care of, that they get home safe. Because again, it's this extension of the workplace element.

So, just make sure there's—I suppose if you're there as the boss in the night out, you don't want to be getting into any kinds of problems in terms of your physical state while you've got employees going there as well. Probably the last one is just confiscate the mistletoe if you see any sight of it. Get rid of it.

Ashers v Lee

Scott: Get rid of it. There's no place in the modern Christmas party. Now, the big case that we were going to discuss last week, let's finish on that. That's Ashers. I don't want to go into the background. I think everybody knows about Mr. Lee. He went into Ashers. He bought a cake. They took the money. They then said, "We're not going to take it because we don't like the message on the cake."

He took a county court claim. He won that county court claim. He then took a claim to the . . .

Seamus: The decision was appealed there to the . . .

Scott: . . . to the court of appeal. He won the case at the court of appeal. The Supreme Court in Belfast then heard the appeal from that and the Supreme Court has come down in favour of the McArthurs, the owners of the Ashers Bakery. In essence, they said they weren't opposed to Mr. Lee, in fact, I think he'd been a previous customer, opposed to the message that was on the cake, which said, "Support Gay Marriage," with a picture of Ernie.

Seamus: That's right.

Scott: More important, I think, for the listeners here is how does that impact in an employment sphere. So, would the outcome had been any different, for instance, if an employee had taken Mr. Lee's order and had said, "We're not printing that. We're not printing that cake because it offends my religious beliefs." Would there have been any difference?

Seamus: Yeah. It's definitely an interesting argument. Your mind following a review of the decision definitely as an employment lawyer moves to those circumstances. My gut feeling on it is that it won't make any difference whether or not it's an employee or not. What the court said in relation to it was to cover that off was that they find that the bakery hadn't refused to fulfil Mr. Lee's order because of a sexual orientation and therefore, there was no discrimination on those grounds.

What Lady Hale had said in her judgement was that essentially the freedom of expression is guaranteed under Article 10 of the European Convention of Human Rights included the right not to express an opinion which one does not hold. So, that's a very clear guide coming from the Supreme Court. I think she added on to that that the court held that nobody should be forced to have or express a political opinion in which he does not believe.

So, if you stretch that out into the realms of an employee/employer relationship and you have an employee saying, "I'm not prepared to do that. I don't want to do that." Some prior case law in relation to disciplinaries happened by employers because of actions that employees have refused to do, but certainly, what the Supreme Court had said was that the bakers couldn't refuse to supply their goods because Mr. Lee was gay or that he supported gay marriage, but what they said was it was very different from obliging them to supply a cake iced with a message with which they profoundly disagreed. It's hard to get your head around exactly what . . .

Scott: It is difficult because there's a quote here "I have already indicated my doubts about discrimination against Mr. Lee on the grounds of his political opinions, but I've acknowledged the possibility that it might be." That's a bit difficult to get my head around that. It might be or it might not be. It seems so linked to the fact, but on the other hand, it does seem a lot of those cases, it's really a sledgehammer to crack a nut.

You remember the case you were going to mention it, Ladele, who was the registrar who didn't want to officiate same sex marriages and action was taken against her. That was deemed to be reasonable by the employer because there were a counsel and had these actions. She was actually reinstated. They worked it out.

But the point there really is if you could accommodate it, it would save an awful lot of hassle. This case costs around £450,000-£500,000. That's an awful lot for something which was a £36 cake or a £500 fine. But if you can accommodate the employee who genuinely says, "This is causing me internal grief," or the employer who has the same problem, it's better to try to work around it, isn't it?

Seamus: It's taking a sort of common-sense approach. It's back to even the stuff that we talked about in the holiday pay. It's much better to avoid ending up in litigation where these sort of grey areas exist and we're not quite sure what are tribunal's views of it. You don't really want to be the test cases. I think in circumstances like this, most employers can identify with their employees. You're rarely surprised at what a particular employee's views might be, either they've expressed it or you can tell in terms of their lifestyle and things like that as well as to where they sit.

So, sometimes you have very conservative or you have very liberal employees. I think it's a much better—I agree with that entirely that it's a much better approach to say in all likelihood, that's a genuine belief. They would be uncomfortable doing it. If you push that employee to do it, you potentially are going to end up with a constructive dismissal claim or some sort of discrimination claim arising from it.

Scott: Which they may or may not win, but the trouble is you're then taking a risk by taking action.

Seamus: And you're going to have to pay costs.

Scott: Yeah.

Seamus: As we can see with this decision, it's a decision that splits the public opinion. There are some people that are overjoyed the Supreme Court has made such a decision and there are other people that are not. So, it's a diverse decision. It's something that will potentially divide even your staff and work as well.

Scott: It hasn't really clarified the situation. That's the problem. But this case, it hasn't come down and said you are absolutely right, Mr. Lee, if you're in commercial work, the printer has to print whatever they like, otherwise they can turn around and do X, Y, Z. It's dancing on the head of a pin. It's fine. Regardless of which side of the case you're on there, it makes little difference.

What it does highlight for employers is that where you get those genuinely held political beliefs, things that are protected, you have to be very careful because this case could have gone either way. This case could have been—the fact that Lady Hale says, "I've acknowledged the possibility that it might be discrimination against Mr. Lee on political grounds because support for gay marriage would be protected under FETO, under the Fair Employment Treatment Order in Northern Ireland."

It's one of those ones that once it's there and it's said in the case, I don't think it's clarified for employers. You just have to take each case on its merits now and be aware that if you don't want to end up in the Supreme Court, try to come up with some kind of reasonable arrangement.

Seamus: That's it. I think it's sensible for you to take and possibly the best way in order to take the heat out of a situation like that as well and hopefully it will resolve the issue without all this unnecessary . . .

Scott: We've had a question on the chat box—does the Ashers case have any impact on employers dealing with requests from staff who do not wish to work Sundays because of their religious beliefs? Now, there's specific legislation on that and in fact, there's case law as well, which from memory, says you don't want to work Sundays, that's fine, but you might not have a job.

Seamus: Yes, exactly. But you can see the complexity that this decision gives in terms of where employers heads then go to in terms of am I able to make a refusal or is it something that I'm going to have to accept and suck up to an extent. But absolutely, there's specific legislation in place for that and if you don't want to work on a Sunday, then those are your contracted hours.

Again, you need to be careful because with religious reasons, if accommodations have been made in the past, especially in tricky scenarios and things like that where there have been accommodations made for people that maybe wish to worship on a particular day or particular time, those can become protected because they've been granted and it's not just a matter of saying yes or no to it. You do need to look at the end of the circumstances.

Scott: You do have to consider—and if you can show it's not possible, the service has to run on a Sunday, then that person doesn't get paid. It wouldn't necessarily justify dismissing them. It might just mean that, hey, you don't work Sundays. We're not going to give you compensatory time off. You end up being a part-time worker. If you can't accommodate that, there may end up being a termination at some stage.

Seamus: They're going to think it's making sure that your paperwork is in order, you're recording your meetings with the employee and if you are challenged on it, then certainly you can refer back.

Scott: Okay. We're going to have to stop it there I'm afraid, folks. I'm sorry for bringing in that extra case there, but we thought it was very important and affects an awful lot of people. We will back on the 7th December and hopefully, I'll meet one or two of you again on the 20th of November at the Annual Review of Employment Law. Thanks very much, folks. Bye, bye.