Aside from the ‘religion and belief’ angle Ms Gray’s case, featured in Personnel Today is also a useful reference to circumstances in which a new employee refuses to sign a contract of employment – what options are open to the employer?
Aside from the ‘religion and belief’ angle Ms Gray’s case, featured in Personnel Today, is also a useful reference to circumstances in which a new employee refuses to sign a contract of employment – what options are pen to the employer?
Mulberry clearly went to great lengths to get Ms Gray to sign her contract and it would have needed to have kept up the ante, making it clear to her that not signing her contract (which we presume would have been a condition of her employment) would result in dismissal. She was employed from January to September by the time Mulberry finally ran out of patience and fired her.
If Mulberry had done nothing, they would have been deemed to have accepted Ms Gray’s breach and the dismissal would have been ruled unfair. Our top tips for employers when facing a new employee who won’t sign their contract:
- Make sure the offer of employment was conditional on signing and returning an un-amended copy of the employment contract (all myHRdept drafted contracts and offers state this);
- Check with the employee as to what the objection is and why and consider amending the contract if there is merit in the employee’s position;
- If it is genuinely important to you (and clearly design rights were critically important to Mulberry in this case) explain your case to the employee and make it clear (in writing) that not signing could lead to dismissal;
- Take advice (e.g. from myHRdept) to check that the employee would not have legally protected rights as the reason for their objection (as Ms Gray claimed);
- Dismiss with, or in some circumstances, without notice.
Turning to the ‘philosophical belief’ aspect some employers might be wondering what on earth Mrs Gray was on about, claiming her dismissal was unfair due to a ‘philosophical belief’. Under the Equality Act 2010 there are 9 protected characteristics against which discriminatory behaviour is unlawful. One of these is ‘religion and belief.’ If Mrs Gray was able to convince the tribunal that she held a clearly recognisable belief that all rights should be attributed to the originator of the work (rather than their employer) then she would have succeeded in her claim….and as ‘religion and belief’ is a protected characteristic, she wouldn’t have needed the 2 years’ service needed for an ordinary unfair dismissal claim either.
In the event the tribunal and the Employment Appeal Tribunal disagreed with Mrs Gray, since a ‘belief’ must have rather more about it to qualify as being a ‘qualifying belief’ under the Equality Act. This leads us to question what would qualify as a belief? The Act makes clear that it should have sufficient cogency, by which it means it must be credible, in most cases shared by others, clearly understood and not in itself unlawful. In previous cases a deep belief in environmental matters has been held to qualify as a belief, because this is a widely shared concern and because many people are actively working towards minimising their (or their employer’s) environmental impact. To dismiss an employee for being a nuisance in trying to encourage their employer to change environmental practices would almost certainly amount to an unfair discriminatory dismissal under the ‘religion and belief’ protected characteristic.
You can read more about protected characteristics by clicking here. This article was written by Bill Larke of myHRdept, myHRdept is a privately owned (non-franchise) HR outsourcing business to the West of London, established in 2002 and with 10 employees. We provide the full range of HR and employment legal services to smaller employers who, in the main, don’t have their own internal HR resource, we support HR teams in larger companies too.
If you’re thinking of outsourcing your HR why not contact myhrdept.co.uk. With HR Outsource packages from only £140 per month (and from as little as £80 per month for start-ups) and support for HR Projects available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements contact us and we’ll call you back.