Education Law Speed Read – 30/07/18

Deadline for publishing facility time information

The deadline for public sector bodies (including schools and academies) to publish certain information regarding their employees’ trade union facility time will run out on 31 July. The period of reporting will be 1 April 2017 to 31 March 2018. We published a speed read in April dealing with this matter, which can be found here.

Trade union facility time will be any time spent by a trade union official, learning representative or safety representative undertaking their duties in that role.

The Government published new guidance on 2 June to assist employers in complying with their obligations. In their guidance, the Government claims that one of the key drivers behind the introduction of the reporting requirements is to promote transparency and increase accountability within Trade Unions and thereby reduce the cost to the taxpayer. A link to the guidance can be found here.

Schools and academies with more than 50 or more full-time employees for seven full months within the last 12 months (to 31 July) are required to publish:

• The total number of employees who were relevant union officials during the relevant period (even if they were not officials for the entire year);
• The percentage of their time spent on facility time;
• The proportion of the employer’s total pay bill spent on facility time; and
• The number of hours spent by the relevant union officials on paid trade union activities as a percentage of total paid facility time hours.

The regulations enacting this requirement contain a standard form for the data to be published in to ensure all required employers publish the data in an easily accessible form. The data must be published either on the school’s website or in its annual accounts, should it produce one, and on the Government portal website.

Following publication, schools should begin to collect data to be published for the next period of reporting (1 April 2018 – 31 March 2019) which will be need to be published on 31 July 2019.

No penalties or enforcement mechanisms have been set out in the Regulations governing this reporting requirement. As with gender pay reports and Modern Slavery statements the intent of the reporting is accountability through visibility. The press is likely to report on the figures published by high profile organisations. Due to the potential for reputational damage, employers should take this reporting requirement seriously.

Gray v Mulberry

In Gray v Mulberry the Employment Appeal Tribunal (EAT) held that Mrs Gray was not directly or indirectly discriminated against on the grounds of her philosophical belief by her employer.

Facts

Mrs Gray commenced employment with Mulberry as a Market Support Assistant on 28 January 2015. Mrs Gray was a writer and film-maker in her spare time.

On 30 January 2015, Mrs Gray signed her employment contract but refused to sign a standard confidentiality agreement (the Agreement). The Agreement included an intellectual property clause which stated that Mulberry would own the IP rights in any materials and inventions that Mrs Gray created during the course of her employment with Mulberry.

Mrs Gray refused to sign the Agreement, on the basis that she believed this clause would give Mulberry ownership over a novel and screenplay that she was writing in her spare time.

Mulberry subsequently agreed to amend this clause to specify that only work which related to their business would be covered, however Mrs Gray still refused to sign the Agreement. Consequently, Mrs Gray was dismissed with effect from 16 September 2015.

Mrs Gray brought claims for direct and indirect discrimination on the grounds of her philosophical belief (religion or belief being one of the nine “protected characteristics” under the Equality Act 2010). Mrs Gray described her belief as “the statutory human or moral right to own the copyright and moral rights of her own creative works and output”.

Employment Tribunal (ET)

The ET found that Mrs Gray did not hold a philosophical belief with the sufficient level of cogency and seriousness to be protected under statute.

The ET held that Mrs Gray’s direct discrimination claim failed because she was dismissed for her failure to sign the Agreement, and not because of her philosophical belief. Further, at no point had Mrs Gray made it known to Mulberry that she had a philosophical belief that prevented her from signing the Agreement.

The ET also found that there was no indirect discrimination, as the provision, criterion or practice in question (the PCP), namely the requirement to sign the Agreement or be dismissed, could not be shown to put other people sharing Mrs Gray’s belief at a disadvantage. In any event, Mulberry could show that the PCP was a proportionate means of achieving a legitimate aim (their aim being to protect their intellectual property rights).

Employment Appeal Tribunal

The EAT agreed that Mrs Gray’s belief was not a philosophical belief within the meaning of s.10 of the Equality Act.

Mrs Gray had failed to act in a manifestation of her belief; she merely refused to sign the Agreement for commercial concerns. Therefore her belief was not sufficiently cogent or serious and could not be protected under statute.

The EAT held that there could be no indirect discrimination because Mrs Gray was the only person known to hold such a belief. Therefore, there was no disadvantaged group and her indirect discrimination claim had to fail.

In addition, the clause in its amended form left little or no scope to argue that Mrs Gray’s work outside of her employment would be affected. The ET was correct to conclude that the PCP was a proportionate means of achieving a legitimate aim.

Comment

This case is a reminder to employers that a wide range of beliefs can be classed as a protected characteristic under the Equality Act 2010.

Both the ET and EAT put emphasis on the fact that Mrs Gray had not made her belief known to her employer, and she had not referred to her belief in the negotiations that were held around the amendments to the Agreement.

However, this may not be the last we hear of this matter as permission has been granted to appeal this case to the Court of Appeal.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.