EmploymentLaw Update
Welcome to the December 2014 issue of
Employment Law Update
In this month’s edition we look at the latest word from Europe on age
discrimination and some interesting cases dealing with gross
misconduct, disability discrimination and redundancy during
maternity leave. There is also a cautionary decision on posttermination restrictions, some quick fire items and an immigration
update.
As always, we’d be delighted to hear from you. If you would like further
information about any of these topics or would like to discuss your
particular circumstances further please speak to your usual Birketts
contact or one of the partners listed below.
Cambridge | Abigail Trencher
abigail-trencher@birketts.co.uk
01223 326622 | 07983 385842
Chelmsford | Kevin Palmer
kevin-palmer@birketts.co.uk
01245 211254 | 07771 517547
Ipswich | Jolyon Berry
jolyon-berry@birketts.co.uk
01473 406356 |07771 542740
Norwich | Jeanette Wheeler
jeanette-wheeler@birketts.co.uk
01603 756427 | 07983 519812
In this issue
Maximum recruitment age
was unlawful
Quick fire: Acas early
conciliation statistics
Culpability for gross
misconduct
Quick fire: Consultation on
Working Time Directive
Reasonable adjustments for
‘allergic’ employee
Quick fire: New statutory
rates of pay announced
Redundancy during
maternity leave
Quick fire: New TUC report
on pregnancy discrimination
Restrictive covenant not
binding without consideration
Immigration Update
LinkedIn Group
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Liz Stevens
Professional Support Lawyer
01603 756474
liz-stevens@birketts.co.uk
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
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@birkettsllp
www.birketts.co.uk/employment
Employment Law Update December2014
Maximum recruitment age was unlawful
In a recent decision, the European Court of Justice (ECJ) has
considered whether the imposition of a maximum recruitment age
(for Spanish police officers) was contrary to the provisions of the
Equal Treatment Framework Directive (2000/78/EC). In this case,
the court held that the maximum age amounted to unlawful age
discrimination.
Perez v Ayuntamiento de Oviedo C-416/13
The facts
A Spanish regional police force limited the recruitment of police officers to
between the ages of 18 and 30. Mr Perez challenged the maximum recruitment
age as being contrary to the provisions of the Equal Treatment Framework
Directive (the Directive).
The case was referred to the ECJ for a ruling on whether the age limit amounted
to a ‘genuine occupational requirement’, or whether it could be objectively
justified in accordance with the requirements of the Directive.
Decision
The ECJ pointed out that age itself cannot amount to a genuine occupational
requirement; it must be a characteristic related to age such as the possession of
certain physical capabilities.
“ The case highlights
in particular the
importance of having
clear and demonstrable
evidence if seeking to
rely on the defence of
objective justification.”
The court noted the regional disparities in maximum recruitment ages for police
officers in Spain. It also noted that whilst many of the duties carried out by police
officers required physical force, not all of them did. The court compared this with
the duties of firefighters, as previously considered by the ECJ in the case of Wolf v
Stadt Frankfurt am Main. In that case, the ECJ was satisfied that the possession of
high physical capabilities was a genuine and determining occupational
requirement related to age.
However, the court in this case was not satisfied that all of the capacities required
of police officers were comparable to those required of firefighters. In addition,
the application of stringent physical tests as part of the recruitment process
meant that the physical capabilities of applicants were established without the
need to impose an arbitrary age limit.
In relation to objective justification, it was clear that the age limit was imposed in
order to reflect the training requirements of the post and the need for a
reasonable period of active employment once the training was completed. Whilst
this was a reasonable objective, no evidence had been submitted to support the
government’s assertion that the age limit was both appropriate and necessary.
The ECJ therefore held that the age limit could not be justified.
Consequences
This case provides further guidance on the restrictive approach taken by the ECJ
to the question of what amounts to a ‘genuine occupational requirement’ and the
defence of objective justification in relation to age discrimination.
The case highlights in particular the importance of having clear and demonstrable
evidence if seeking to rely on the defence of objective justification.
Whilst it might have been assumed that the ECJ's earlier ruling in relation to
firefighters was more generally applicable to other emergency services, this case
demonstrates the requirement for all employers who impose an age limit on
recruitment to ensure they have quantifiable data to show why such an age limit
is necessary for the particular role in question. The scope for justifying a
maximum age limit is likely to be limited in practice.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
Quick fire
Acas early conciliation statistics.
In the period from 6 April 2014 to 30 September 2014, Acas received 37,404 early
conciliation notifications, of which 96.7% were from employees.
Early conciliation was introduced in order to encourage the early settlement of
disputes and to reduce the number of claims reaching the employment tribunal.
For the period April to June 2014, 18% of notifications resulted in a COT3
settlement (usually with a payment made to the employee to settle their claim);
24% progressed to a tribunal claim; the remaining 58% did not progress to a
tribunal claim.
The reason for such a high proportion not reaching the employment tribunal is
undoubtedly due in large part to the fact that claimants now have to pay a fee to
lodge a claim, and they are either unable to pay upfront or are not prepared to
risk losing the money if their claim does not succeed.
We are still awaiting the High Court’s decision on UNISON’s latest judicial review
application challenging the introduction of tribunal fees, which was heard on 21
and 22 October 2014.
Culpability for gross misconduct
The Employment Appeal Tribunal (EAT) has recently considered
the difficult issue of whether a mentally ill employee is guilty of
gross misconduct when he has admitted committing the acts in
question, but is not necessarily culpable for his deeds.
B v Aviva Employment Services Ltd
The facts
Mr B, who had been diagnosed with a depressive illness (paranoid schizophrenia),
was dismissed following sexual assaults he committed both within and outside his
workplace. He was also charged with criminal offences in relation to the assaults.
During the employer’s investigation Mr B admitted the assaults. He explained that
it was due to him stopping his medication without seeking medical advice, which
he said was an error of judgement. The investigation also discovered that he had
received a police caution for previous sexual assaults, which he had failed to
disclose to his employer.
“ This case raises
particularly difficult
and sensitive issues
that would be
challenging for any
employer to address.”
The disciplining manager concluded that the only possible sanction in the
circumstances was dismissal, given Mr B had admitted the gross misconduct.
Mr B claimed unfair dismissal and discrimination arising from disability, both of
which were dismissed by the employment tribunal.
Decision
Upholding Mr B’s appeal, the EAT criticised the employer’s conclusion (accepted
by the employment tribunal) that Mr B’s admission of guilt constituted an
admission of gross misconduct. The tribunal should have considered whether the
employer had reasonable grounds for concluding that the misconduct had been
committed wilfully or in a grossly negligent way; this would necessarily take into
account his mental illness.
(continued overleaf)
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
The EAT also criticised the assumption that dismissal automatically fell within the
band of reasonable responses in a case of gross misconduct. There was no
indication that the tribunal had given any regard to the mitigating
circumstances or considered why Mr B had stopped taking his medication.
In relation to the claim for disability discrimination, the employment tribunal had
failed to properly evaluate the employer's defence that Mr B's dismissal was
justified by its need to set appropriate standards of conduct within the workplace.
It had failed to consider whether, for example, allowing Mr B to work from home
would be an appropriate alternative to dismissal.
Consequences
This case raises particularly difficult and sensitive issues that would be challenging
for any employer to address. The EAT’s decision as much reflects the
employment tribunal’s failure to apply the proper legal analysis, as being critical
of the employer’s actions.
“ The judge
commented:‘the
Respondent was faced
with an unusual set of
circumstances which
required a sensitive
balancing exercise’”
In circumstances where a mentally-ill employee is accused of misconduct, it is
crucial for the employer to consider both the individual’s culpability and also the
appropriate sanction, bearing in mind the medical evidence.
The judge in this case commented: “the Respondent was faced with an unusual
set of circumstances which required a sensitive balancing exercise between its
obligations of fairness to the Claimant and its duty of care to its employees more
generally”.
It was not clear in this case that the disciplining manager had addressed his mind
to alternatives to dismissal, or why he considered that these alternatives were not
appropriate. The outcome may have been the same had he done so, but he failed
to demonstrate that he had conducted the necessary balancing exercise
rendering the dismissal unfair.
Quick fire
Consultation on Working Time Directive
The European Commission has issued a new public consultation in relation
to its ongoing review of the Working Time Directive. This review commenced
in 2009 but has so far not resulted in any agreed amendments to the Directive.
Proposed changes have previously included the removal of the 48-hour opt out
and clarification of the classification of ‘on-call’ time, but in 2013 the European
social partners failed to reach agreement on the changes.
This latest consultation is seeking views on the impact of the existing
maximum working week and minimum daily and weekly rest breaks. It also asks
whether limits provided under the Directive should apply to multiple contracts
(if the worker has more than one job), or to each contract separately.
The consultation closes on 15 March 2015. Any potential amendments to the
Directive are likely to take some considerable time to be agreed, so we are still
a long way off any changes to the Working Time Regulations 1998.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
Reasonable adjustments for ‘allergic’ employee
What measures should an employer take to accommodate an
employee with a potentially life-threatening, allergic-type reaction
to aerosols and perfume? In this case, the Employment Appeal
Tribunal (EAT) agreed that there were no reasonable adjustments
the employer could make and the claimant’s dismissal was held to
be fair.
Dyer v London Ambulance NHS Trust
The facts
“ It will be rare for
there to be no
possible reasonable
adjustment for an
employer to make”
The employee in this case, Ms Dyer, was employed as a call handler in the
headquarters of the London Ambulance Trust (the Trust). Between 2006 and
2009, on five separate occasions she suffered severe reactions to other people’s
aerosol spray, each of increasing severity. The final episode was particularly acute,
requiring hospitalisation. Ms Dyer did not return to work.
After obtaining medical advice and considering what reasonable adjustments it
could make, the Trust dismissed Ms Dyer on grounds of capability.
Her claims for unfair dismissal and disability discrimination were dismissed by the
employment tribunal. It was not considered practical for the employer either to
implement, or to enforce, an aerosol and perfume-free policy in such a busy
workplace (as it had previously attempted to do). The tribunal took particular note
of the fact that it could be fatal to the claimant if someone failed to observe such
a policy.
Decision
The EAT dismissed Ms Dyer’s appeal, upholding the tribunal’s decision. It agreed
that there was no reasonable adjustment that the employer could make in the
circumstances. The employee’s desire to return to work in spite of the risk to her
personal health and safety did not affect the assessment of whether an
adjustment was reasonable.
Consequences
It will be rare for there to be no possible reasonable adjustment for an employer
to make. The life-threatening nature of this individual’s condition and the difficulty
of achieving a complete ban on the trigger substances meant that the employer
had little alternative but to dismiss. It is a helpful decision to employers,
emphasising the requirement for an objective assessment of whether any
reasonable adjustment can be made.
Quick fire
New statutory rates of pay announced
The new statutory rates for periods of family leave and sick leave have been
announced, taking effect from April 2015.
Statutory maternity, adoption and paternity pay will increase from £138.18 to
£139.58 per week. Any paid period of shared parental leave will also be paid at
this rate.
Statutory sick pay (SSP) will increase from £87.55 to £88.45 per week.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
Redundancy during maternity leave
At what point in a redundancy exercise does an employer’s duty to
offer those on maternity leave suitable alternative employment
arise? The Employment Appeal Tribunal (EAT) has considered
this question in the context of a restructuring exercise.
Sefton Borough Council v Wainwright
The facts
Sefton Borough Council (the Council) decided to amalgamate two existing posts
into one as part of a restructuring exercise. Both incumbent employees were
invited to apply for the new post; one of the employees, Mrs Wainwright, was on
maternity leave at the time. Mrs Wainwright was not appointed to the new role.
She was subsequently dismissed for redundancy and brought claims for unfair
dismissal and discrimination on the grounds of pregnancy/maternity.
“ ... [the claimant]
should have been
offered the new role
without the need to
participate in a
selection process ...”
The Council argued that the duty to offer any suitable alternative employment to
a woman on maternity leave, in preference to other employees at risk of
redundancy, only arose once the restructuring exercise was complete. It claimed
that was only bound by the duty once Mrs Wainwright was within the
redeployment pool, having been unsuccessful in being appointed to the new post.
The employment tribunal rejected this argument and upheld Mrs Wainwright’s
claim. The right to be offered alternative employment was triggered as soon as
the employer was aware that a redundancy situation had arisen in relation to the
individual’s post. Mrs Wainwright should have been offered the new role without
the need to participate in a selection process.
Decision
The EAT agreed with the tribunal’s decision on when the duty to be offered
alternative employment arose. It would undermine the purpose of the legislation
if the employer was free to wait until after a restructure was complete before
offering the woman any suitable vacancy. It was an absolute right, even if the
woman was not the best candidate; the claimant should not have been required
to undertake a competitive selection process.
Consequences
There has been little previous judicial guidance on when the duty to offer women
who are pregnant or on maternity leave suitable alternative employment arises.
In a redundancy selection process involving a pool of employees, the duty will only
arise once the woman has been selected for redundancy. This latest decision
appears to suggest that in a restructuring exercise, the duty arises earlier:
probably as soon as it is clear that the woman's post will no longer exist. Acas has
some useful guidance on how to manage redundancies for pregnant employees
and those on maternity leave.
Quick fire
New TUC report on pregnancy discrimination
The TUC has published a new report to highlight the difficulties faced by pregnant
women in the workplace and the treatment of those on maternity leave. The new
report, The Pregnancy Test: Ending Discrimination at Work for New Mothers
concludes with a number of recommendations aimed at improving the
experiences of pregnant women and new mothers at work.
The TUC is calling for the abolition of tribunal fees to improve access to justice for
women who have been subjected to unlawful treatment on the grounds of their
pregnancy or maternity leave. It is also seeking to increase the level of paternity
pay and encourage greater availability of flexible working. A copy of the report is
available on the TUC website.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
Restrictive covenant not binding without
consideration
A recent High Court decision has highlighted the importance of
ensuring that an employee is given adequate ‘consideration’ (a
pay rise or other benefit) when agreeing to new contractual
restrictions.
Re-use Collections Limited v Sendall and another
The facts
The employee, Mr Sendall, had previously been a director of what was a familyowned glass recycling company until it was taken over by Re-use Collections
Limited (Re-use). He had no written contract of employment, but was issued with
a new contract containing restrictive covenants by Re-use in October 2012. He
eventually signed the contract in February 2013 but gave notice to terminate his
employment the following month.
“ ... the judge found
there to be no
evidence that either
the pay rise or the
bonus was made
conditional on him
signing the
new contract”
Re-use suspected that Mr Sendall had been approaching its customers with a
view to persuading them to transfer their business to a competitor company. The
competitor had been established by Mr Sendall’s two sons and Re-use had reason
to suspect that he was also involved.
Re-use sought to enforce the restrictive covenants against Mr Sendall.
Decision
Despite finding Mr Sendall a “wholly unreliable witness”, the Court refused to
uphold the restrictive covenants on the grounds that he had not received any
“real monetary or other benefit” in exchange for the variation to his contract.
Mr Sendall had apparently received a pay rise in January 2013 as well as a bonus
around the same time, but the judge found there to be no evidence that either
the pay rise or the bonus was made conditional on him signing the new contract.
The Court did not accept that Mr Sendall’s continued employment represented a
benefit, since there was no evidence that his employment would be terminated if
he refused to sign the new contract.
In addition, the Court held that a 12 month restriction on setting up in competition
with Re-use was far too wide to be reasonable, particularly since the other
restrictions were only for six months. In the Court’s view, even six months was too
long for the covenants preventing the solicitation and dealing with customers of
Re-use to be enforceable.
Consequences
This case highlights the importance of giving very careful thought as to the
minimum period necessary to protect a legitimate business interest. Any posttermination restriction should be no longer than is reasonably necessary to
protect such interests.
It is also crucial to ensure that an existing employee who agrees to new posttermination restrictions is provided with some benefit (such as a pay rise or
incentive payment) in consideration for the variation to his or her contract. As this
case demonstrates, any such benefit should be expressly granted on condition
that the restrictions are agreed by the employee.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/employment
Employment Law Update December2014
Immigration Update December 2014
It seems barely a day passes without a reference to immigration
appearing in the news.
While a great deal of the debate focusses on migration from EEA member states,
the Government has suffered an additional blow to their promise to reduce net
migration to the tens of thousands with new figures released this week which
suggest that migration from outside the UK has also significantly grown in the last
12 months, with an additional 14,000 new migrants compared with last year.
From the outset, the Government has placed employers at the heart of
immigration control and we have already seen in recent months moves to ensure
that employers are carefully monitored to ensure that there are genuine attempts
to recruit from within the UK resident labour market before offering work to a
migrant worker. Moreover, there is a continuing crack down on abuses, including
illegal working. Penalties for employing illegal workers have increased and in the
months leading up to the election, we expect greater emphasis to be placed on
immigration raids and the proper collection of fines. New figures released this
week show that over £10m of fines have been issued to businesses employing
illegal workers in the first half of this year, accounting for just under 2,000 illegal
workers.
For further information
on any of the points
covered in this
immigration update
please contact:
Clare Hedges
Associate
01223 326605
clare-hedges@birketts.co.uk
Janice Leggett
Immigration Consultant
01245 211280
janice-leggett@birketts.co.uk
Making life difficult for illegal workers and tackling abuses is certainly one of the
Government’s priorities. From 1 December landlords involved in a pilot scheme in
the West Midlands will be required to carry out right to rent checks, with penalties
of up to £3,000 for failing to verify that an individual has the legal right to live in
the UK (and will remain so for the duration of their tenancy) before allowing them
to rent property. The scheme will be rolled out to the rest of the country in the
New Year.
A further abuse the Home Office has identified is that of sham marriages. To
counter any potential abuse, from March 2015, the period to give notice of
marriage to a registrar is set to increase from 15 days to 28 days. The changes,
which are part of the Immigration Act 2014, will ensure that the Home Office has
more time to identify and investigate suspected sham marriages and civil
partnerships. For couples involving a non-EEA (European Economic Area)
national, where the Home Office suspects the couple are not genuine, the notice
period may be extended to 70 days. There will also be additional powers for
registrars to share information to make sure appropriate action can be taken
against couples suspected of being involved in a sham marriage. Couples who
give notice of a marriage or civil partnership before 2 March 2015 will not be
affected by the changes.
One final point, Home Office application forms change frequently. Please check
the latest forms and fees prior to submitting any applications!
If you would like further information on any topics raised in this update please
contact Janice Leggett or Clare Hedges.
Clear Legal Advice
Cambridge Chelmsford Ipswich Norwich
www.birketts.co.uk/immigration