The claimant initially won his case in the county court and the Court of Appeal. However, on a further appeal to the Supreme Court, the Court ruled that the bakery had not unlawfully discriminated against him. The Court ruled that the bakery did not refuse the order because of the claimant's sexual orientation but because of the message he wanted on the cake. This was not direct sexual orientation discrimination, as the bakery would also have refused to supply a cake with the same message for a heterosexual customer. In relation to political or religious belief discrimination, the Court also ruled that it would be contrary to the bakery owners' rights to force them to supply a cake with a message with which they profoundly disagreed.
While this case is all about the provision of goods and services to the public, difficulties can arise for employers where an employee refuses to perform a certain task because of their religious beliefs. For example, there have been several cases where supermarket assistants have refused to handle alcohol or certain meats because of their religious beliefs. As this case shows, employers should endeavour to accommodate such religious objections where possible, particularly where the impact on the business is minimal.
In contrast, there have also been cases where employers have been justified in requiring individuals to perform tasks contrary to their beliefs. For example, a Christian registrar lost a discrimination claim when she was disciplined for refusing to carry out civil partnerships for same-sex couples, and a relationship counsellor similarly lost a claim when he was dismissed for refusing to provide sexual counselling to same-sex couples. However, employers must tread carefully – the employers in both cases were able to show that they had pledged to provide their services to the public in a non-discriminatory way and that this was fundamental to their ethos.
LEE V ASHERS BAKERY CO LTD AND OTHERS
National minimum wage
The Government has announced that the rates of the national minimum wage and the national living wage will increase as follows from April 2019:
- £8.21 per hour for workers aged 25 and over (rising from the current national living wage of £7.83 per hour)
- £7.70 per hour for workers aged 21 to 24 (rising from £7.38 per hour)
- £6.15 per hour for workers aged 18 to 20 (rising from £5.90 per hour)
- £4.35 per hour for workers aged 16 to 17 (rising from £4.20 per hour).
The apprenticeship rate for apprentices under 19 or in the first year of their apprenticeship will also increase from £3.70 to £3.90 per hour.
The Government has announced that planned changes to the treatment of national insurance contributions (NICs) on termination payments will be delayed until April 2020. Currently, where an ex gratia termination payment is made on top of notice pay, the first £30,000 can be paid free of income tax and any amount above this is taxable. However, the entire payment is exempt from NICs. From April 2020, the first £30,000 of the ex gratia termination payment will still be free of income tax and NICs but any amount above this will be subject to both income tax and NICs. The change was originally scheduled for April 2019 but has been delayed until April 2020 as part of the Autumn 2018 Budget.
Changes to taxing contractors
As part of the Autumn 2018 Budget, the Government has announced that the public sector off-payroll working rules will be extended to the private sector in April 2020. The extension will mean private sector employers may need to change the way they engage and tax contractors.
Under the public sector rules, introduced in April 2017, where an individual contractor or consultant provides their services to a public sector client via a personal services company, the client must decide whether the "IR35 legislation" applies. This broadly involves asking whether, without the personal services company, the individual would be regarded as an employee of the client. If so, the client (or body responsible for paying the contractor's company) must deduct income tax and NICs from payments to the contractor's company as if the contractor were an employee. The client must also pay the relevant employer's NICs.
The Government has said that, from April 2020, the rules will apply to medium and large private sector employers (likely those with more than 50 employees and/or above certain balance sheet and turnover thresholds). A further consultation will be launched in 2019 on the detail of the proposal. While April 2020 may seem a long way off, in scope employers should begin auditing their use of contractors and consultants, and begin planning for the changes during 2019 in order to be ready for implementation.
Watch this space
Employment Tribunal fees
The Ministry of Justice has given some indications that Employment Tribunal fees could possibly be reintroduced. Fees were abolished in July 2017 on the basis that they prevented access to justice and were indirectly discriminatory against women. However, the Permanent Secretary for the Ministry of Justice has said he is confident that a fee system could be found which does not deny access to justice. He confirmed there are no immediate plans to reintroduce fees but suggested a new fee regime is being developed. Employment Update will report developments.
Since our last Employment Update, our work has included:
- presenting training sessions for boards, managers and staff on equal opportunities and diversity, including sexual harassment
- working in conjunction with our Financial Services and Markets team to assist our asset management clients to prepare for the extension of the Senior Managers and Certification Regime to all FCA-regulated firms
- advising on a number of disputes with employees beginning with a chain of escalating grievances
- advice to a client around options for injunctive relief relating to breaches by a former employee in a sales function of his post-termination restrictive covenants
- advising on whether TUPE applies following a service provision change in relation to the mixed supply of goods and services
- advising a client on a business-wide restructuring, including obligations around collective consultation and individual redundancy processes
- drafting a bonus scheme for senior managers of an asset management business
- defending a team move in the High Court
- advising clients on fitness and propriety against the background of sexual harassment allegations
- creating a new performance management process and training managers on it.