2022 has been another eventful year. Whilst Covid has faded into the background, inflation and the war in Ukraine has had a dramatic effect on the country and the petrol retail industry. With all this turmoil here are a number of issues that members may have missed in the last 12 months, as well as to developments to look forward to in 2022.

Is an employee’s perception of conduct enough for the conduct to be harassment?

No, according to the case of Ali v Heathrow Express Operating Company Ltd (1) and Redline Assured Security Ltd (2)

The Claimant, worked for Heathrow Express Operating Company Ltd (Heathrow). From time-to-time Redline Assured Security Ltd (Redline) carried out security checks at Heathrow airport and Heathrow Express stations. One such test in 2017 involved a bag containing a box, electric cables and a piece of paper with the wording “Allahu Akbar” written in Arabic.

The Claimant was a security guard but was not involved in the test. When he received a report about it later, he complained that this conduct amounted to harassment by reference to his religion. It was Heathrow and Redline’s position that whilst the words used were regrettable, the phase had been used in a number of high-profile terrorist attacks and it was therefore legitimate to include the phase in order to make the package look more suspicious.

After hearing the evidence, the tribunal concluded that neither Redline nor Heathrow’s conduct amounted to direct discrimination or harassment because by using the phrase “Allahu Akbar”, they did not have the intention of associating Islam with terrorism. it was not in all the circumstances reasonable for the Claimant to perceive the conduct as having such an effect. This view was supported at the Employment Appeal Tribunal where it was concluded that the decision was neither legally perverse nor insufficiently reasoned.

Whilst this is a very fine line, this case does serve as a reminder that just because someone feels that they have been harassed and discriminated against, does not always mean that they have been. However, on a note of caution, this case was decided on a very specific set of facts (not least of which the employers legitimate aims to counter terrorism as an airport and transport hub), the outcome may have been different if sufficient legitimate alternative explanations for the conduct concerned were not available.

Looking forward

Here are some of the things to look out for going forward.

Flexible and atypical working

The Employment Relations (Flexible Working) Bill 2022-23 is looking to make changes to the right to request flexible working. This could include permitting an employee to make 2 requests in a year and requiring employers to consult with employees before refusing a request.

Whilst the final wording is unknown, the Government has recently confirmed it would support the Bill, making flexible working the default. Further details are available here.

Working time and annual leave

The case of Chief Constable of the Police Service of Northern Ireland v Agnew is being heard 14-16 December 2022. The Judgement, which we expect in 2023 will determine whether a series of unlawful deductions from pay is broken if the deductions are more than 3 months apart.

In Conclusion

As an RMI member you have access to industry experts including Barristers and Solicitors who are fully qualified and specialised in issues affecting the motor and petrol retail industry. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate on 01788 538 399.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.