UK Employment Law case updates - March 2017

By Ian Hunter, Pattie Walsh, Elizabeth Lang, James Froud


Latest UK Employment Law case updates - March 2017

  1. Five weeks' holiday refusal not religious discrimination
  2. Missing the jackpot: damages of £1 awarded in Marathon breach of confidence case
  3. Minimum Income Requirement for non-EEA spouses compatible with human rights

Five weeks' holiday refusal not religious discrimination

Gareddu v London Underground Ltd UKEAT/0086/16/DM

The EAT has confirmed that an employee was not indirectly discriminated against on the basis of his religion when he was prevented from taking 5 weeks' holiday, which he claimed was for the purpose of attending religious festivals.

The Claimant had been allowed to take extended leave every August since 2009 to attend Catholic festivals in Sardinia. In 2013 his request for a five-week holiday was refused, with his employer stipulating 15 days as the maximum time off that could be taken in one block. The Claimant brought a claim in the ET on the grounds of religious discrimination.

The ET dismissed the claim, finding that the Claimant's asserted religious belief was not made in good faith. In 2013, the Claimant had only attended nine of the 17 festivals that he had claimed he needed to attend each year; his attendance at any particular festival was also entirely dependent on his family. The Tribunal did accept that attending religious festivals could in principle constitute a manifestation of religious belief, but found that this was not the case in relation to the period required by the Claimant.

In upholding the ET's findings, the EAT concluded that, even though the Claimant had been motivated at least in part by his religious beliefs, the ET had been entitled to reach the decision it had based on the evidence available. It did not question the veracity of his religious belief in and of itself; rather they doubted that he needed to attend the religious festivals as part of his faith. The Claimant contended that the festivals were of deep religious significance to him, but the EAT agreed with the first instance decision that although his presence at the festivals was a manifestation of his Catholicism, his attendance was not solely due to his religious belief, as it was also motivated by his family and friends' wishes.

This decision will be welcomed by employers who need to balance the interests of the organisation with the rights of employees to practise their religion. It demonstrates that Tribunals are willing to scrutinise the veracity of religious manifestation claims, even against the backdrop of established expectation on the employee's part. Employers should note that even if the Claimant's belief had been genuine in this case, his employer may still have been able to justify its refusal to grant extended holiday by showing that it was a proportionate means of achieving a legitimate aim.

Missing the jackpot: damages of £1 awarded in Marathon breach of confidence case

Marathon Asset Management LLP & Anor v Seddon & Ors [2017] EWHC 300 (Comm)

The High Court found that two ex-employees caught copying confidential files belonging to their employer (the Claimant) onto USB sticks prior to their leaving were in breach of both their duties of confidence and their employment contracts.

The Claimant claimed £15m in "Wrotham Park" damages, based on the notional sale value Marathon attributed to the confidential information taken. Notably, there was no allegation of the Claimant suffering any actual financial loss as a result of the copying of documents. The judge confirmed that the basis of damages in English contract law is to compensate the injured party, not to punish any wrongdoing. As no financial loss or injury had been sustained by the investment management firm, nominal damages of £1 each were awarded.

The case highlights the difficulty in securing damages from breach of confidence claims. Evidence of financial loss arising from the breach (typically not easy) will be crucial. It serves as a reminder to employers of the focus they should place on protecting the information from misappropriation and misuse. It is far better to secure the stable door before the horse has bolted.

Minimum Income Requirement for non-EEA spouses compatible with human rights

R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) and Others [2017] UKSC 10

The Supreme Court has ruled that the Minimum Income Requirement (MIR) is "acceptable in principle" and compatible with European human rights legislation.

The MIR, which was inserted into the Immigration Rules in July 2012, states that a UK citizen must earn a minimum of £18,600 per annum before they can apply for spouses or partners from non-EEA states. It replaced a less prescriptive set of rules which broadly required the parties to prove that they had sufficient means to live "adequately… without recourse to public funds".

The Court acknowledged that applicants "have been faced with something of a moving target", especially because many relationships would have been formed before the change was introduced. It also noted that female sponsors, sponsors from certain ethnic groups and sponsors from certain parts of the country would be disproportionately affected by the threshold. However, it held that this in and of itself did not render the MIR unlawful.

The judgment outlined its suggested revisions to what it considered to be the defective aspects of the MIR, such as making clearer the Secretary of State's duty to children in such situations, as well as allowing for alternative sources of funding to be included in deliberations when calculating the relevant citizen's minimum income. However, it stopped short of indicating how these defects should be corrected, and adjourned the question of remedies to allow time for the Secretary of State to indicate how she proposes to amend the instructions and other guidance. The Court may consider whether a further hearing is necessary once they have received the Secretary of State's written submissions.